Town and country planning – Local development plan – Loss of open space – Claimant applying for judicial review of decision of defendant local planning authority to grant outline planning permission for residential development – Whether officer’s report misleading defendants on issue of loss of open space – Application granted
The defendant local planning authority granted outline planning permission to the interested party housing association for 32 new dwellings and associated highway on land at Forder Lane, Dartington, Devon. The central part of the site was currently occupied by 18 one-bedroom bungalows, which were inhabitable and inhabited but failed to meet the Decent Homes Standard. Under the proposal, they would be demolished in favour of 12 new affordable one-bedroom flats that would be let; eight dwellings of one to three bedrooms, used by people with learning disabilities for supported living; and 12 open market dwellings that would facilitate the development and make it self-funding.
The claimant lived in one of the bungalows on the site and opposed the development: if it went ahead she would have to leave her home and be relocated. The loss of the communal green in the bungalow quadrant had been raised as a key issue in considering planning permission. The planning officer’s report made clear that, if the development proceeded, the aesthetic feel of being within the site would change from a low-density to a high density development and open space and habitat would be lost. It dealt with that issue by stating that, since the existing gardens and landscaped areas were privately owned, the loss of open space was an adverse impact that could be afforded only limited weight in the balance.
The claimant applied for judicial review of the defendants’ decision to grant permission. She contended, among other things, that the officer’s report, and thus the defendants’ planning committee, had failed properly to consider the loss of open space which was inherent in the development. She argued that the officer had treated the loss of open space as an adverse impact that needed to be weighed, with all other material considerations, in the general planning balancing exercise which the local authority had to conduct. However, Policy DP8 of the local development plan and paragraph 74 of the National Planning Policy Framework gave open space a particular status in planning terms. Since the proposed development would breach the local development plan in terms of reducing open space, section 38(6) of the Planning and Compulsory Purchase Act 2004 required the defendants to refuse the application unless material considerations indicated otherwise.
Held: The application was granted.
A judicial review application based on criticisms of a planning officer’s report would not normally begin to merit consideration unless the overall effect of the report had significantly misled the planning committee about material matters which thereafter were left uncorrected before the relevant decision was taken. The court thus needed to focus upon the substance of the report to see whether it had sufficiently drawn the decision-making council members’ attention to the proper approach required by the law and material considerations, and not to insist on elaborate citation of underlying materials. Otherwise, reports were liable to become over-defensive and lengthy to the extent that the willingness and ability of council members to read and digest them effectively would be undermined: R v Selby District Council, ex parte Oxton Farms [1977] EG 60 (CS) applied; R (on the application of Maxwell) v Wiltshire Council [2011] EWHC 1840 (Admin); [2011] PLSCS 187 considered.
Whilst the court should be restrained when considering criticism of officers’ reports, in the present case it was not persuaded that, by the mere mention of Policy DP8 in the annex to the report which listed relevant policies, the planning committee members would have appreciated the breach of the development plan which the loss of open space involved: particularly as Policy DP8 dealt with, not only the protection of existing open space, but the requirement to make positive provision for public open space where a new development comprised two or more dwellings. The officer’s report, unfortunately, did not hint at the loss of open space being a breach of the development plan; and, in all the circumstances, it could not be simply assumed that the committee members appreciated that it was. Therefore, it could not be assumed that they approached the open space issue in the correct, lawful way. Although it would not have taken very much to have made the members aware of the breach of Policy DP8 that was inherent in the proposed development, as a matter of fact, the members had been misled and did not appreciate that such a breach was involved.
Nor was that error was immaterial. Four members of the committee were of the view that the planning balance in any event was against granting permission. Although the open space issue had been but one of the many planning issues with which the members had to grapple, it had been identified as a “key” issue; and, without pre-empting what the decision might have been (or might be on reconsideration), it could not be said with any confidence that the members would have arrived at the same result if the error identified had not occurred. The legal error identified was material and it could not be said that the decision of the members would have been the same if the error had not been made. The application would be remitted to the defendants for reconsideration.
Annabel Graham Paul (instructed by Harrison Grant Solicitors) appeared for the claimant; Saira Kabir Sheikh QC (instructed by South Hams District Council) appeared for the defendants; The interested party did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read transcript: R (on the application of Wilkinson) v South Hams District Council