Planning permission – Development plan – Material considerations – Claimant applying for judicial review of refusal of permission for installation of solar farm – Whether secretary of state failing to fulfil duty under section 38(6) of Planning and Compulsory Purchase Act 2004 – Application granted
The claimant applied under section 288 of the Town and Country Planning Act 1990 for an order quashing the decision of the first defendant secretary of state dismissing its appeal against the refusal of the second defendant local authority of its application for planning permission for the installation of a solar farm on a site of about 46 hectares at Ellough Airfield, near Beccles in Suffolk. The claimant had sought temporary permission for a period of 25 years. The appeal was recovered by the first defendant because it involved a proposal of major significance for the delivery of the Government’s climate change programme and energy policies. In April 2013, the second defendants granted planning permission for a smaller solar farm on about 29 hectares in the northern part of the same site. An inquiry into the claimant’s appeal was held by an inspector appointed by the first defendant who recommended that the appeal be allowed. However the first defendant rejected that recommendation and dismissed the appeal.
The claimant contended, among other things, that the first defendant had failed to fulfil his duty under section 38(6) of the Planning and Compulsory Purchase Act 2004 to make his decision on the claimant’s proposal in accordance with the development plan unless material considerations indicated otherwise, and whether in that respect the decision was perverse.
Held: The application was granted.
(1) Section 38(6) of the 2004 Act embodied the statutory presumption in favour of the development plan which was the cardinal principle of the plan-led system of development control. If it was to be properly applied, the decision-maker had to understand the relevant provisions and decide whether the proposal complied with the development plan considered as a whole. If development plan policies pulled in different directions, the decision-maker had to make a judgment bearing in mind the importance of the policies which were complied with or infringed and the extent of compliance or breach. It might be necessary to decide which was the dominant policy: whether one policy compared to another was directly as opposed to tangentially relevant, or should be seen as the one to which the greater weight was required to be given: City of Edinburgh Council v Secretary of State for Scotland [1997] 3 PLR 71, R v Rochdale Metropolitan Borough Council, ex parte Milne [2000] EWHC 650 (Admin), R (on the application of Laura C) v Camden London Borough Council [2001] EWHC (Admin) 1116 and Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; [2012] PLSCS 69 considered.
(2) In the present case, policy DM03 and policy DM27 were the most relevant policies of the development plan and it was common ground that there would be cases in which there was a degree of tension or conflict between these two policies.
Policy DM03 dealt specifically with proposals for the development of low carbon and renewable energy. For development other than large-scale schemes in areas of national importance it set out the criteria by which the proposal would be judged. Permission would be granted if there were no “significant adverse effects” of the various kinds to which it referred. If the development would not have significant adverse effects upon the landscape, it did not have to be justified by wider benefits. The concept of balancing benefits against any potentially significant adverse effects indicated that, even if significant adverse effects were likely, they would not automatically lead to a refusal of planning permission. They had to be balanced against any relevant benefits, which might be strong enough to outweigh them.
The approach in policy DM27 was different in that its purpose was to protect the distinctive character areas, strategic objectives and considerations identified. It was a general policy and did not apply only to one particular type of project. It was less supportive of development than policy DM03 and carried a presumption against planning permission being granted unless there would be no harm to the relevant area. The criterion of harm was simply “an adverse effect” or “any adverse impacts”. It followed that a proposal for renewable energy development might satisfy policy DM03 but not policy DM27.
(3) In this case, the decision letter contained an assessment of the planning merits which was clearly at odds with the inspector’s. It was an assessment in which the proposal was found to comply in substance with one of the two most relevant policies in the development plan (DM03) and to conflict with the other (DM27). In those circumstances, the first defendant had to explain how he would reconcile his conclusions relating to the two policies when he considered whether the proposal complied with the relevant provisions of the development plan. Because he was disagreeing with the inspector he could not rely on the inspector’s reasoning. He had to ask himself whether the proposal was or was not in accordance with the plan, read as a whole, and he had to provide clear reasons for the conclusion he reached. Otherwise, his decision would be vulnerable to the criticism that he had not asked himself that important question, and had failed to perform the duty imposed upon him by section 38(6). The first defendant had not said whether the proposal was in accordance with the development plan. He had not acknowledged any tension between Policies DM03 and DM27, or between the conclusions he had reached when applying them. His own assessment of the planning merits made it necessary for him to decide which approach to the balance between harm and benefit should be followed. Therefore, the first defendant’s reasons left genuine doubt that he made his decision on the appeal in the way section 38(6) required. Bearing in mind the jurisprudence on reasons challenges, that was a fatal flaw which went to a fundamental part of the decision and did the claimant substantial prejudice: South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953 applied.
Andrew Newcombe QC (instructed by DLA Piper UK LLP) appeared for the claimant; Stephen Whale (instructed by the Treasury Solicitor) appeared for the first defendants; The second defendant did not appear and was not represented.
Eileen O’Grady, barrister
