Town and country planning – Planning permission – Permitted development rights – Defendant local planning authority granting interested party planning permission for construction of acoustic barriers, use of land for storage of shooting huts and associated development – Claimant seeking judicial review – Whether defendant failing to take account of material considerations – Whether defendant making irrational decision – Application dismissed
The defendant local planning authority granted planning permission to the interested party for the construction of acoustic barriers, use of land for the storage of shooting huts and associated development on land at Mount Oliver Meadow, Hartpury, Gloucester. The interested party wished to continue clay pigeon shooting on the land for the 28 days per year permitted under the Town and Country Planning (General Permitted Development) (England) Order 2015 (SI 2015/596). The site was located in the open countryside surrounded by a mixture of farmland and wooded areas. An area of ancient semi-natural woodland abutted part of the western boundary.
The claimant, who lived about two miles from the site, applied for judicial review of the decision to grant planning permission. He contended that the defendants had: (i) failed to consider whether the development had been of such a scale and degree as to lead to a permanent change in the use of the land, which had been a material consideration; (ii) erred in law in failing to consider whether the development had been in accordance with the development plan policies, seeking to protect and enhance biodiversity, a required by section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004; (iii) failed to take into account a material consideration, namely, the nearest “sensitive receptor” or failed to give adequate reasons for not having so considered; and (iv) irrationally based their decision on evidence that the shot noise level would be reduced to an acceptable level using low-load cartridges, but then failed to impose a condition requiring that low-load cartridges would be used.
Held: The application was dismissed.
(1) The claimant had misdescribed and/or misunderstood the nature of the application that had been before the authority such that the first ground of challenge was misconceived and failed. The application had not been seeking, as the claimant contended, planning permission for the change of use of the land from agricultural to clay pigeon shooting. The permission had facilitated a temporary permitted shooting use and had not prevented the land from reverting to its normal use. There had been no omission of a material consideration: Ramsey v Secretary of State for the Environment Transport and the Regions [2002] EWCA Civ 118; [2002] PLSCS 23 distinguished.
(2) Since the officer report made it clear that clay pigeon shooting could take place under permitted development rights for a period of 28 days, the defendants had not been required to consider the impact of 28 days’ shooting on wildlife. They had dealt clearly and fairly with the development plan and biodiversity issues. Correct directions had been given as to the nature of the application and appropriate conditions that were to be attached to the planning permission. In reality, this ground amounted to a challenge to the planning merits of the development.
(3) The defendants had not been required to explore the detail of the impact of clay pigeon shooting upon wildlife as to the sensitive receptor, due to the fact that the clay pigeon use could lawfully take place under permitted development rights. However, it had expressly considered the sensitive receptor and had been well aware of issues being raised in relation to it, how those issues had not changed the recommendation and the reason for that. The challenge, in reality, amounted to a challenge to the quality and standard of reasons. As the issue had not been material and/or had not been a main controversial issue, there had been no requirement to have considered the matter further or to have given any further reasons than those which had been given in the officer report.
(4) It could not be said to have been irrational on the part of the authority to have concluded that the development in the application had been suitable to achieve noise mitigation without a condition relating to gun cartridges if one could be appropriately drafted. It might be a matter for professional disagreement but that fell short of the test for irrationality. A range of measures could be used to reduce noise. It had been a matter entirely for the planning judgment of the defendants to decide whether the application before them had been acceptable in policy terms and what package of conditions had been required to make the application acceptable in planning terms. Their conclusions had been entirely reasonable in the circumstances.
Nina Pindham (instructed by Davies and Partners Solicitors) appeared for the claimant; James Corbet Burcher (instructed by Forest of Dean District Council) appeared for the defendants; Sarah Clover (instructed by TLT Solicitors) appeared for the interested party.
Eileen O’Grady, barrister
