Town and country planning – Planning permission – Fall-back position – Appellant challenging decision of respondent local planning authority to grant planning permission for residential development on agricultural holding – Judge below quashing grant of planning permission – Appellant appealing – Whether respondents adopting unlawful approach to fall-back position available to the landowner – Whether respondents adopting unlawful approach to national planning policy framework (NPPF) – Appeal dismissed
The respondent local authority granted planning permission to the interested parties to build four five-bedroomed houses and associated access, parking and landscaping on land at Rocks Farm, The Rocks Road, East Malling in Kent. The appellant lived in a listed property next to the site. Part of the land was a designated conservation area. The development site was part of an agricultural holding comprising a large agricultural building of 600m2 and a residential bungalow used by a caretaker. The development contemplated demolition of both buildings.
A report was prepared by the planning officer which concluded that the starting point was the adopted development plan, against which other material planning considerations had to be given appropriate regard, including the requirements in the national planning policy framework (NPPF), which was an important material consideration, and the planning and design of the proposal for the site in the context of the permitted development fall-back position. The fall-back position was said to arise through the “permitted development” rights for changes from use as an agricultural building to use as a dwelling house under Class Q in the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO). Under Class Q.1(b), development was not permitted if the cumulative floor space of the existing buildings which were changing use within an established agricultural unit exceeded 450m2. The weight to attribute to each of those other considerations and the overall balance was ultimately a matter for the planning committee but the balance lay in favour of granting planning permission, even though the proposal conflicted with the local development plan.
The High Court dismissed the appellant’s claim for judicial review of the respondents’ subsequent decision to grant planning permission in accordance with the officer’s report: see [2016] EWHC 2832 (Admin). The appellant appealed. The issues for determination were: (i) whether the respondents correctly interpreted and lawfully applied the provisions of Class Q in the GPDO; (ii) whether the respondents were entitled to accept there was a real prospect of the fall-back development being implemented; and (iii) whether the respondents misunderstood or misapplied the “presumption in favour of sustainable development”.
Held: The appeal was dismissed.
(1) The judge’s understanding of Class Q had been correct. The provisions of Class Q relating to the scope of permitted development rights had to be given their literal meaning. When that was done, they made perfectly good sense in their statutory context and did not give rise to any duplication or redundancy. Had the draftsman intended to confer permitted development rights under Class Q only to buildings whose total floor space was not more than 450 m2, there would have been no need to use the word “cumulative” or some other such word. Therefore, the officer did not misrepresent the permitted development rights under Class Q in his advice to the respondents’ planning committee on the fall-back position. The provisions of Class Q were correctly interpreted and lawfully applied.
(2) The respondents were entitled to accept that there was a “real prospect” of the fall-back development being implemented and to give the weight they evidently did to that fall-back as a material consideration. In doing so, they made no error of law. The planning officer’s advice in relation to the fall-back development was unimpeachable. The status of a fall-back development as a material consideration in a planning decision was not a novel concept. The court had to resist a prescriptive or formulaic approach, and keep in mind the scope for a lawful exercise of planning judgment by a decision-maker. The basic principle was that, for a prospect to be a real prospect, a possibility would suffice. Fall-back cases tended to be very fact-specific and the role of planning judgment was vital. It was important not to constrain what or ought to be, in each case, the exercise of a broad planning discretion, based on the individual circumstances of that case, by seeking to constrain appeal decisions within judicial formulations that were not enactments of general application but were simply the judge’s response to the facts of the case before the court. The degree of clarity and commitment that might be necessary was always a matter for the decision-maker’s planning judgment in the particular circumstances of the case. In the present case, it was plainly necessary for the planning committee members to have taken account of the fall-back available to the landowner. Not to have done so would have been a failure to have regard to a material consideration: Samuel Smith Old Brewery (Tadcaster) v Secretary of State for Communities and Local Government [2009] EWCA Civ 233; [2009] PLSCS 96 applied. R (on the application of Kverndal) v London Borough of Hounslow Council [2015] EWHC 3084 (Admin); [2015] PLSCS 305 and Ahern and Brentwood Borough Council v Secretary of State for the Environment [1996] 72 P & CR 61 considered.
(3) It was common ground that the presumption in favour of sustainable development was not operative in this case. In Barwood Strategic Land II LLP v East Staffordshire Borough Council [2017] EWCA Civ 893; [2017] PLSCS 144, the Court of Appeal had outlined the policy for the presumption in favour of sustainable development and references to earlier first instance judgments on the meaning of the presumption had to be avoided. A development which did not earn the presumption and did not, therefore, have the benefit of the “tilted balance” in its favour, might still merit the grant of planning permission. Planning officers’ reports to committee were not to be read with undue rigour, but bearing in mind that they were written for councillors with local knowledge. It was only if the advice in the report misdirected members in a material way so that, but for the flawed advice, that committee’s decision might have been different, that the decision was rendered unlawful. In the present case, the officer’s advice was not so flawed. The exercise which he conducted was a conventional and lawful balance of material considerations against the identified conflict with the development plan. Though the interpretation of planning policy was ultimately a matter for the court, planning policies did not normally require intricate discussion of their meaning. Planning officers and inspectors were entitled to expect that both national and local planning policy was as simply and clearly stated as it could be, and also that the court’s interpretation of it would be straightforward, without undue or elaborate exposition. In the present case, the judge had been right to conclude that the respondents did not misunderstand or misapply the presumption in favour of sustainable development: Barwood Strategic Land II LLP v East Staffordshire Borough Council [2017] EWCA Civ 893; [2017] PLSCS 144 and Trustees of the Barker Mill Estates v Secretary of State for Communities and Local Government [2016] EWHC 3028 (Admin); [2017] EGLR 14 applied.
Annabel Graham Paul (instructed by Richard Buxton Environment & Public Law) appeared for the appellant; Juan Lopez (instructed by Tonbridge & Malling Borough Council Legal Services) appeared for the respondents; The interested parties did not appear and were not represented.
Eileen O’Grady, barrister
Click here to read a transcript of Mansell v Tonbridge & Malling Borough Council.
