Town and country planning – Planning permission – Area of outstanding natural beauty (AONB) – Developer applying for planning permission to build residential dwellings, including affordable housing, in area of outstanding natural beauty – Planning officer recommending refusal of permission – Defendant local authority granting permission – Claimant applying for judicial review – Whether defendants construing relevant planning policies correctly – Whether defendants giving adequate reasons for decision – Application granted
In April 2012, the interested party developer applied for planning permission for a residential development at a site consisting of 1.2 hectares in two undeveloped fields, at School Hill, Mevagissey. The proposed development comprised 31 dwellings, including 21 affordable homes, with associated landscaping, roads and services. There was a clearly identified need for 55 affordable homes in the village. The ten open market homes were intended to subsidise the affordable homes, so that there would be no need for public funding.
The claimant parish council opposed the application. The whole of the village, including the proposed development site, fell within an area of outstanding natural beauty (AONB) and the site was in an area of spectacular coastline scenery and far-reaching views.
The proper approach to development within an AONB was contained in the National Planning Policy Framework (NPPF), which gave the conservation of landscape and scenic beauty a particular enhanced status. The defendants’ senior development officer accepted the need for affordable housing but identified alternative locations with significantly less impact on the AONB. Accordingly, he recommended that the application be refused. The defendants’ planning committee concluded that the provision of affordable housing outweighed any impact on the AONB and granted planning permission.
The claimants sought to quash that decision. On receipt of the pre-action protocol letter, the defendants consented to judgment against them and the matter being remitted for redetermination. However, the interested party did not consent to a quashing order and the proceedings continued. One primary ground of challenge was that the defendants’ approach to their task was unlawful as it was not in accordance with the relevant policies. Furthermore, in breach of article 31(1)(1) of the Town and Country Planning (Development Management Procedure) (England) Order 2010 (SI 2010/2184), the defendants had failed to give adequate summary reasons for their decision.
Held: The application was granted.
(1) In a substantial planning application, such as the present, a planning authority usually delegated the substantive determination to a committee or sub-committee of council members. The committee could not have proper regard to relevant policies unless they understood those policies. They therefore had an obligation to proceed on the basis of a proper understanding of relevant policies as properly construed, the true interpretation of such policies being a matter of law for the court. Where the committee had misunderstood or misapplied a policy, that might found a challenge to his decision, if their decision would or might have been different if they had properly understood and applied the guidance: Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, Gransden & Co Ltd v Secretary of State for the Environment (1985) 54 P & CR 86 and Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; [2012] PLSCS 69 applied.
Where an application was made for a development in an AONB, the relevant committee or other planning decision-makers were required to take into account and weigh all material considerations. In particular, they had to consider, in the light of the relevant policies, the tension between the local need for affordable housing and the impact of the proposal on a location within an AONB. However, the NPPF placed the conservation of the landscape and scenic beauty of an AONB into a special category of material consideration. As a matter of policy it had to be given great weight and permission for a major development in an AONB was to be refused save in exceptional circumstances and where it could be demonstrated the proposed development was in the public interest. In coming to a determination of such a planning application under that policy, the committee were therefore required to do more than weigh all material considerations in a balance. They had to refuse an application unless they were satisfied that there were exceptional circumstances and it was demonstrated that, despite giving great weight to conserving the landscape and scenic beauty in the AONB, the development was in the public interest. The committee might depart from the guidance but, in the present case, the planning committee had given no reasons for doing so, and it was not contended that they had made a deliberate and informed departure from the guidance.
(2) Although pressing need for the provision of affordable housing might be a significant factor in the assessment of whether the circumstances were exceptional, there was no evidence in the present case that the need had been found to have amounted to exceptional circumstances for the purposes of the NPPF. The committee’s summary reasons, looked at fairly, suggested that they had found that the need for affordable housing outweighed the harm to the AONB that the development would cause, on the basis of a simple balancing exercise. However, they had not been performing a simple balancing exercise since they could only have approached the application on the basis of the NPPF. They had to find exceptional circumstances, and then, giving the conservancy of the AONB great weight, determine whether other factors, including the need for affordable housing, meant that the public interest was nevertheless in granting permission for the development. In the present case, the words used in the committee’s summary grounds suggested that they had ignored the requirements of the NPPF and adopted the wrong approach: R (on the application of Siraj) v Kirklees Metropolitan Council [2010] EWCA Civ 1286, R (on the application of Macrae) v Herefordshire District Council [2012] EWCA Civ 457, R (on the application of Cherkley Campaign Ltd) v Mole Valley District Council [2013] EWHC 2582 (Admin); [2013] PLSCS 217 and R (on the application of Wildie) v Wakefield Metropolitan District Council [2013] EWHC 2769 (Admin); [2013] PLSCS 218 considered.
For the purposes of article 31(1)(a)(i) of the 2010 Order, whilst the summary reasons had stated that the committee considered that the planning application had accorded with the relevant provisions of the NPPF, it could not be assumed or otherwise derived from the reference to the NPPF that its members had had regard to the specific requirements of the framework. Furthermore, the summary reasons neither indicated that the members had properly understood and applied the relevant policies, nor could the rationale of the committee’s determination be discerned. Accordingly, the planning permission would be quashed.
Alex Goodman (instructed by Direct Access) appeared for the claimant; The defendants did not appear and were not represented; Harriet Townsend (instructed by Stephens Scown LLP) appeared for the interested party.
Eileen O’Grady, barrister
