Town and country planning – Planning permission – Development plan – Claimant applying for judicial review of decision of defendant local planning authority to grant planning permission for small residential development – Whether defendant failing to give reasons for decision – Whether defendant failing to determine whether proposal complied with development plan – Application granted
The village of Hartest was a small settlement about seven miles south of Bury St Edmunds in Suffolk. On 20 December 2018 the defendant planning authority granted planning permission, against the advice of its officers, for the erection of six single-storey, two- and three-bedroom houses on part of a paddock off Lawshall Road on the eastern side of the village. The site comprised about 0.46ha and adjoined the rear garden of a house called The Paddocks. It was outside the built-up area boundary of the village but within the Hartest conservation area and was part of a special landscape area.
The claimant lived in a property which overlooked the site from a slightly elevated position on the south side of Lawshall Road. He applied for judicial review of the defendant’s decision on the grounds of, amongst other things: (i) failure to give reasons for the decision to grant planning permission; and (ii) failure to determine whether or not, and the extent to which, the proposal complied with the development plan.
Held: The application was granted.
(1) It was common ground that there was no general duty to provide reasons for planning decisions. However, where a decision-maker’s reasons could not be inferred from publicly available materials, such as the reports of professional officers, fairness and good administration might require that reasons be given. A court should only impose a general duty to give reasons where there was a sufficient accumulation of reasons of particular force and weight in relation to the particular circumstances of individual cases. Typically, they would be cases where permission had been granted in the face of substantial public opposition and against the advice of officers, for projects which involved major departures from the development plan, or from other policies of recognised importance. Such decisions called for public explanation, not just because of their immediate impact, but also because they were likely to have lasting relevance for the application of policy in future cases: R (on the application of Oakley) v South Cambridgeshire District Council [2017] EGLR 22 and Dover District Council v CPRE Kent [2018] EGLR 1 applied.
The reasons relied on had to enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues, disclosing how any issue of law or fact was resolved and giving rise to no substantial doubt as to whether the decision-maker erred in law: South Buckinghamshire District Council v Porter (No 2) [2004] 1 WLR 1953, R (on the application of Rogers) v Wycombe District Council [2017] EWHC 3317 (Admin) and Pagham Parish Council v Arun District Council [2019] EWHC 1721 (Admin); [2019] PLSCS 127 considered.
In the present case, the combination of circumstances clearly required that the defendant provide reasons for its decision. This was the third occasion in two and a half years on which a decision had been taken in relation to the site, and the defendant was again taking a different view from that which it had originally formed. Without proper explanation of the rejection of the officers’ recommendation the public would be left in real doubt about the approach which would be taken to the development plan policy in other cases. The defendant’s disagreement with the advice of its officers was important. If reasons were required when a committee changed its mind, there was a powerful case for asserting that they should also be required when the committee disagreed with the planning officer. The fact that the decision was a redetermination following the quashing of an earlier planning permission was also significant. The application was clearly controversial, with eight objections and five supporting submissions received from a village of fewer than 500 inhabitants. It was opposed by the parish council and was reported to be contrary to the emerging neighbourhood plan. The only indication of the committee’s position was found in the minutes of the meeting. There was no formulated statement of reasons.
(2) Section 38(6) of the Planning and Compulsory Purchase Act 2004 required planning applications to be determined in accordance with the development plan, unless material considerations indicated otherwise. There was a statutory presumption in favour of the development plan, whose policies ensured consistency in decision-making. The decision-maker had to identify and understand the relevant policies and establish whether the proposal accorded with the plan, read as a whole. The proper interpretation of the policies was a matter of law and a failure to understand them was liable to be fatal to the decision but, as long as the decision-maker understood them, their application was a matter of planning judgment: Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; [2012] PLSCS 69 and Secretary of State for Communities and Local Government v BDW Trading Ltd [2016] EWCA Civ 493; [2016] PLSCS 161 considered.
In the present case, the minutes did not clearly identify the views on the extent of the conflict with the development plan, or on the extent of the benefit required to outweigh it, at least as far as the issue of connectivity was concerned. To the extent that those recorded views could be regarded as the reasons of the committee, they were not sufficiently clear to demonstrate that the section 38(6) duty had been complied with. In any event, because of the way in which the minutes were structured, recording a dialogue between the case officer and a single councillor, they were entirely silent on the reasons of other councillors for supporting the resolution to grant planning permission. An assessment of their views, and thus the reasons of the committee as a whole, depended entirely on inference. The documents relied on did not clearly identify the committee’s approach and were insufficient to discharge its common law duty to provide reasons. Accordingly, it was impossible to conclude that it was highly likely it would have resolved to grant planning permission if it had properly directed itself.
Jenny Wigley (instructed by Richard Buxton Solicitors) appeared for the claimant; Ashley Bowes (instructed by Shared Legal Service) appeared for the defendant; the interested party did not appear and was not represented.
Click here to read a transcript of R (on the application of Gare) v Babergh District Council
