Inevitably, when a third party challenge to the decision of a local planning authority (“LPA”) to grant planning permission is being considered, the spotlight must fall – in particular – on the committee report. This was so in R (on the application of Save Our Parkland Appeal Ltd) v East Devon District Council [2013] EWHC 22 (Admin). There a local amenity group unsuccessfully sought judicial review of a decision by the LPA to grant outline planning permission for the construction of 400 houses on a greenfield site.
One ground of challenge was an alleged failure on the part of the LPA to comply with section 38(6) of the Planning and Compulsory Purchase Act 2004. This provides that where regard is to be had to the development plan for the purposes of any determination to be made under the Planning Acts, the determination must be made in accordance with the plan unless material considerations indicate otherwise.
Earlier authority clearly establishes that the court should take into account the following principles when considering a challenge based on the content of a committee report. (1) Committee reports are not to be equated with inspectors’ decision letters. (2) Equally, they are not to be construed as if they were statutes. (3) Their overall effect and fairness should be considered. (4) A claim for judicial review will not normally merit consideration unless the overall effect of the report is to mislead the committee members significantly about material matters. (5) The author is entitled to assume a knowledgeable readership, and that members have particular knowledge of both the planning policy context and the local area.
In the present case, the planning application had been advertised as a departure application. It conflicted with a specific plan policy, the stated purpose of which was protection of the countryside. The committee report acknowledged this. But it also went on to identify clearly a number of factors capable of supporting a departure from the plan, including the provision of 40% affordable housing on the site.
The court concluded that the committee report did advise members that they would have to decide whether the policy conflict was outweighed by the benefits of the development. The report was full and detailed, and could not be said to have misled the members about any material matters. They had to undertake a planning balance exercise, and they had exercise a judgment in a manner they were entitled to do by granting planning permission.
John Martin
