Failure by the decision maker to interpret development plan policies correctly will inevitably result in a defective decision
By virtue of section 70(2) of the Town and Country Planning Act 1990, when dealing with an application for planning permission, the local planning authority (“LPA”) is bound to have regard to “the provisions of the development plan, so far as material to the application… and any other material considerations”. The court in EC Gransden & Co Ltd v Secretary of State for the Environment (1987) 54 P&CR 86 held that, in order to have regard to a policy in the development plan, the decision maker must have interpreted it correctly. Otherwise, the decision would be as defective as it would have been had no regard whatsoever been paid to the policy.
In R (on the application of Gibson) v Mid Sussex District Council [2014] EWHC 1296 (Admin) the LPA had granted planning permission for 26 affordable homes on the edge of, but outside, the settlement limit. An applicable local plan policy (relating to rural exceptions) provided that such development should be permitted only “in exceptional circumstances where there is no other [more] suitable site to meet the local need”. The planning officer had not carried out any alternative sites assessment, and – while she had referred in general terms to the local plan policy in her report to the planning committee – she had not informed its members of the requirement for such an assessment.
By virtue of section 70(2) of the Town and Country Planning Act 1990, when dealing with an application for planning permission, the local planning authority (“LPA”) is bound to have regard to “the provisions of the development plan, so far as material to the application… and any other material considerations”. The court in EC Gransden & Co Ltd v Secretary of State for the Environment (1987) 54 P&CR 86 held that, in order to have regard to a policy in the development plan, the decision maker must have interpreted it correctly. Otherwise, the decision would be as defective as it would have been had no regard whatsoever been paid to the policy.
In R (on the application of Gibson) v Mid Sussex District Council [2014] EWHC 1296 (Admin) the LPA had granted planning permission for 26 affordable homes on the edge of, but outside, the settlement limit. An applicable local plan policy (relating to rural exceptions) provided that such development should be permitted only “in exceptional circumstances where there is no other [more] suitable site to meet the local need”. The planning officer had not carried out any alternative sites assessment, and – while she had referred in general terms to the local plan policy in her report to the planning committee – she had not informed its members of the requirement for such an assessment.
The claimant applied to quash the decision to grant planning permission on the ground that the LPA had failed to interpret the local plan policy correctly, and so had failed to have proper regard to it. The LPA filed a witness statement, made by the planning officer, stating that alternative sites had been considered during the application process, but none was regarded as more suitable. The claimant opposed the admission in evidence of the witness statement, on the ground that it contradicted the official records. See R (on the application of Lanner Parish Council) v Cornwall Council [2013] EWCA Civ 1290.
The court allowed the claim, and quashed the LPA’s decision. The members of the planning committee had been significantly misled by the report. The decision maker here was the LPA, acting through its planning committee. If, as it appeared, the only consideration of alternative sites had been made by officers, that was not consideration by the members of the planning committee. Finally, in terms of the court’s discretion not to quash, it was not possible to say on the basis of the evidence that the planning committee would inevitably have reached the same decision had it been properly advised by the planning officer in relation to the local plan policy.
John Martin
