Town and country planning – Planning permission – Development plan policy – Claimant applying for judicial review of grant of planning permission for gypsy site – Whether planning application being made in accordance with development plan – Application granted
The defendant local authority granted planning permission to the interested party for four gypsy pitches and associated development at Milee, Nickley Wood Road, near the village of Shadoxhurst in Kent. The site was in a private road in the countryside, about one mile south of the village. The site for the proposed development fell within an area that was covered by a blanket tree preservation order and designated as ancient woodland. The site itself consisted of a thin strip of land most of which was to the rear of an existing authorised gypsy and traveller site that had three permitted pitches. The parts of the site proposed for development consisted of existing hard-surfaced trackway and lawful hard-surfaced and tarmacked areas. Access to the road was proposed through the existing authorised gypsy and traveller site to the north.
The claimant, who lived nearby, applied for judicial review of the grant of planning permission. He contended, among other things, that the decision was flawed because the defendants failed to apply section 38(6) of the Planning and Compulsory Purchase Act 2004 which required the determination of applications for planning permission to be made in accordance with the development plan unless material considerations indicated otherwise. The claimant submitted that the defendants had failed to do so since no judgment had been reached on whether the proposed development accorded with a number of key development plan policies or with the development plan taken as a whole.
The question was whether the claimant had discharged the onus on him of showing on the balance of probabilities that, when taking the decision, the development control manager had failed to make the determinations required or, if she had, they were legally flawed.
Held: The application was granted.
(1) Although the defendants’ assessment had identified all the relevant development plan policies when considering the proposed development, as required by section 70(2)(a) of the Town and Country Planning Act 1990, reference to relevant policies was not of itself sufficient to discharge the duty under that provision. The defendants also had to interpret the policies correctly and, given the duty imposed by section 38(6) of the 2004 Act, as a general rule they also had to determine: (i) whether the individual material policies supported or counted against the proposed development or were consistent or inconsistent with them; and (ii) whether or not the proposed development was in accordance with the development plan as a whole. It had not been suggested that this was a case in which a departure from such general rules would be lawful: Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; [2012] PLSCS 69 and R (on the application of Hampton Bishop Parish Council) v Herefordshire County Council [2014] EWCA Civ 878; [2014] PLSCS 198 applied.
(2) A local planning authority was not under any statutory obligation to give any reasons, or a summary of their reasons (as they once were), for the grant of planning permission and there was no general obligation at common law requiring reasons to be provided for the grant of planning permission. However, in general litigation, where a party elected not to call available witnesses to give evidence on a relevant matter, the court might draw inferences of fact against that party. Where there were issues of fact about what conclusions an authority might have reached and for what reasons, it might well be unsatisfactory for an authority to rely on any summary grounds they had filed. Summary grounds for opposing a claim did not always clearly distinguish between facts and arguments. It could sometimes be difficult, as in this case, to decide whether the reasons stated were those that were in fact entertained by a decision maker for any conclusion reached or those that might be advanced to justify it. Where the defendant had to explain the decision-making process and the reasoning underlying a decision, where it was not apparent from the documents, its duty of candour should be discharged in witness statements. That practice should normally be followed so that the facts could be clearly established in order to resolve claims fairly and justly: R v Aylesbury District Council, ex parte Chaplin [1997] PLSCS 246; (1998) 76 P & CR 207, R v Mendip District Council, ex parte Fabre [2000] PLSCS 6; (2000) 80 P & CR 500, Oakley v South Cambridgeshire District Council [2016] EWHC 570 (Admin) and R (on the application of Das) v Secretary of State for the Home Department [2013] EWHC 632 (Admin) considered.
(3) In the present case, assuming that the development control manager formed conclusions on the consistency of the proposed development with policies in the development plan and whether the development was in accordance with it, the summary grounds disclosed two errors of law: the first in relation to local plan policy EN32 which was not concerned merely with damage to, or loss of, important trees but also with, and required permission to be refused for, any development proposals which would damage important woodlands; the second in relation to policy CS14 which provided that, if required, sites for gypsies and travellers would be identified in a site allocation development plan document on the basis of certain criteria. There was no such development plan document and accordingly the site was not one allocated in it, whether or not it would meet those criteria. Both errors also flawed the determination which the summary grounds stated was made that the proposed development complied with the development plan as a whole, given the conflict local plan policy GP12 which had been recognised: R (on the application of Cherkley Campaign Ltd) v Mole Valley District Council [2014] 2 EGLR 98 followed.
Andrew Parkinson (instructed by Richard Buxton Environmental and Public Law) appeared for the claimant; Giles Atkinson (instructed by Ashford Borough Council Head of Legal and Democratic Services) appeared for the defendants; The interested party did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read the transcript of R (on the application of Cooper) v Ashford Borough Council.
