A Parish Council opposed to plans for a development of 25 affordable homes close to a quiet Cornish village have failed in a Court of Appeal challenge to the November 2011 planning permission – but only because a second, identical permission has since been issued.
The Court of Appeal also made clear that in judicial review proceedings, local authorities should not be allowed to adduce evidence that directly contradicts the official records of how decisions were reached.
Jackson LJ ruled that the initial permission granted to Coastline Housing was “flawed” because the planning committee wrongly treated Policy H20 of the Draft Kerrier District Local Plan 2004 – which allows an exception to the normal policy against development in rural areas for affordable housing on small sites of no more than about 12 dwellings – pointed in favour of the proposal, when in fact it did the contrary. As a result, he said the November 2011 permission was “liable to be quashed”.
However, he said that in February the council had granted a fresh permission to Coastline, again for 25 affordable homes at the Trestavean Estate in Lanner.
He said: “There is no dispute about the validity of this planning permission. The planning committee which approved Coastline’s second application had been fully and properly informed about the effect of Policy H20 and the extent of local need for affordable housing.”
In the light of that, he declined to exercise his discretion to quash the earlier permission, on the basis that it is no longer operative and the court ought not make a quashing order “which serves no useful purpose”.
In what he described as an issue of wider importance, he said that in a high court decision dismissing Lanner Parish Council’s claim for judicial review in January, Judge Anthony Thornton had accepted a statement of evidence at the hearing from a county councillor that the committee had in fact been informed that the terms of Policy H20 prohibited the development in this case, but nevertheless resolved to grant permission despite non-compliance.
The parish council claimed that the judge should have based his decision on the official records of the planning committee’s deliberations and disregarded this statement.
Jackson LJ said that the council should not have been permitted to adduce evidence contradicting its stated reasons, and that had the judge disregarded that evidence he would not have made the “crucial finding of fact” that the committee proceeded on the basis that the development was contrary to Policy H20.
He added: “There is a point of principle here, which is of some importance. Save in exceptional circumstances, a public authority should not be permitted to adduce evidence which directly contradicts its own official records of what it decided and how its decisions were reached.”
Lanner Parish Council v Cornwall Council Court of Appeal (Rimer, Jackson and Lewison LJJ) 25 October 2013
Phillip Coppel QC (instructed by Follett Stock LLP ) for the Claimant
James Findlay QC and Sancho Brett (instructed by Cornwall Council Legal Services) for the Defendant