Town and county planning – Planning permission – Material consideration – Appellant appealing against High Court decision upholding grant of planning permission for conversion of barn to single dwelling – Whether planning officer entitled to find earlier identical permission about to expire was material consideration – Whether officer giving appropriate weight to change of circumstances relating to housing land supply – Appeal dismissed
The interested party developer owned a site at Maypole Wood, Maypole Road, Langford, Essex comprising agricultural/commercial buildings in the form of a brick-built enclosed barn, an open-sided barn and a large pre-fabricated outbuilding with an open-sided lean-to structure surrounded by a concrete apron set within just over 90 acres of existing woodland and grassland.
In November 2014, the interested party applied for planning permission from the respondent local planning authority to convert the brick-built element of the existing buildings and construct a one-storey extension wing to provide a single three-bedroomed dwelling; and to demolish the other existing buildings. The appellant, who resided in a property which shared a drive with the site, objected. The respondent accepted that it could not demonstrate a five-year supply of housing land. By operation of para 49 and 14 of the National Planning Policy Framework, permission should be granted unless the adverse effects of doing so significantly and demonstrably outweighed the benefits (the tilted balance test). The respondent’s planning officer recommended refusal of the application as the proposal would only provide one new dwelling, which would not assist in meeting the housing shortfall need. The planning committee did not follow that recommendation but granted permission, subject to conditions, in 2015.
Having obtained permission, the interested party made no attempt to satisfy the conditions or commence the development. Instead, in February 2018, he resubmitted his application for permission on the basis that it would have been impossible to satisfy the conditions before the 2015 permission expired. The same planning officer recommended that permission should be granted. She took the view that the 2015 permission was a material consideration of significant weight. The planning committee adopted that recommendation and granted permission subject to the same conditions.
The High Court dismissed the appellant’s application for judicial review: [2018] EWHC 3421 (Admin). The appellant appealed.
Held: The appeal was dismissed.
(1) The planning officer had correctly addressed the planning balance in each of the 2015 and 2018 reports. In 2015 the respondent had not been able to demonstrate that it had a five-year housing land supply, whereas in 2018 it could. There was no evidence to suggest that the officer had failed properly to take into account that change when considering the appropriate weight to be given to the 2015 permission as a material consideration. The weight given to the contribution of the development to housing need was expressed to be “minimal” compared with “very limited” in the 2015 report. Even less weight had been given to that factor in 2018 than in 2015, reflecting the changed housing land supply position. The 2015 report expressly dealt with the fact that the inability to demonstrate a five-year housing land supply meant that the tilted balance applied; and proceeded to apply it. Although the 2018 report did not expressly refer to the fact that the tilted balance did not then apply, to determine whether it properly took into account that patently material change, the report had to be read as a whole. From its conclusions, it was clear that the tilted balance was (correctly) not applied in the 2018 report.
(2) The respondent had not unlawfully fettered its own discretion by proceeding on the basis that it was bound to give significant weight to the 2015 permission. It was clear from reading the 2018 report as a whole that the officer was not intending to suggest that there was any legal obligation on the respondent to place any specific weight on the 2015 permission. In context, all that she was saying was that in the light of the matters addressed in detail in earlier passages in her report, and in the absence of any significant impact caused by the material change of circumstances, including relevant policy changes, it was inevitable that the grant of permission in 2015 for the same proposed development would be regarded as a significant factor in the balancing exercise. Given that there was planning permission for the identical development, and the only difference identified was that with regard to housing land supply, the officer was entitled to consider that, on the facts and despite the change in approach to the planning balance that the change in housing land supply dictated, it was inevitable that the respondent would give the 2015 permission significant weight. That was not the same as fettering its own discretion.
(3) It could not be said that the officer had failed properly to conduct the planning balancing exercise which required all material considerations to be balanced fairly together. The officer stood back and looked at the various material considerations holistically, and concluded that the material considerations in favour of the development (including the 2015 permission) outweighed those which were adverse. Her approach was clearly appropriate and lawful.
(4) It was not arguable that the officer had failed to take into account the fact that, in practical terms, the 2015 permission could not be implemented by the time the 2018 application was considered. As it could not in practice be implemented, the 2015 permission could not be regarded as a fall-back position and the officer had not suggested that she had treated it as such: she clearly understood that the 2015 permission was not going to be implemented. However, the 2015 permission was still a material consideration because of the principle of consistency. It would have been material even if the time for implementation had lapsed. The officer accepted that it was a material consideration, and treated it as such. Although a permission which could in practice be implemented was likely to attract more weight than one that could not, the weight was a value judgment which necessarily depended on the facts and circumstances of the specific case. Given the importance of consistency in administrative decision-making, the officer was entitled to ascribe significant weight to the 2015 permission despite the fact that it had only days to run and was in practice incapable of being implemented.
Victoria Hutton (instructed by Prettys Solicitors LLP, of Ipswich) appeared for the appellant; Josef Cannon (instructed by Maldon District Council) appeared for the respondent; the interested party did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Bates) v Maldon District Council
