Town and country planning – Planning permission – Area of outstanding natural beauty – Respondent council granting planning permission for extensive development in AONB – Appellant challenging lawfulness of decision – Whether respondents properly applying para 116 of National Planning Policy Framework – Whether giving adequate reasons for decision – Appeal allowed
In June 2013, the respondent council resolved to allow an application for planning permission for an extensive development on two sites on the western fridge of Dover. Part of the development was to comprise 521 residential units and a retirement village of 90 apartments on land at Farthingloe, within a designated area of outstanding natural beauty (AONB). A further 31 residential units, plus a hotel and conference centre, were proposed on the nearby Western Heights, a prominent hilltop which featured a series of early 19th century fortifications. The Western Heights site was a scheduled monument although the surviving fortifications were in a poor state of repair and were on the English Heritage at risk” register. Permission was also sought for the conversion of part of the fortifications, the Drop Redoubt, into a visitor centre and museum. The planning application included proposals for pedestrian access and landscaping work between the two sites.
It was not disputed that the scale of the proposed development was unprecedented in an AONB. A report by the respondents’ planning officers expressed the view that the proposals as advanced would result in long-term, irreversible harm to the AONB and recommended that permission be granted only for a lower-density development. The respondent’ planning committee resolved to approve the application as submitted. The only reasons given for that decision were contained in the minutes of the planning committee meeting, which referred to the benefits of the proposed development for regeneration and investment in Dover and the restoration of heritage assets, while expressing the view that those benefits outweighed any harm to the AONB since such harm could be minimised with effective screening. Although the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (the EIA Regulations) applied to the case, so that the respondents were obliged, under regulation 24, to make and keep a statement containing the main reasons and considerations on which their decision was based, no such document was in fact produced.
The appellant sought judicial review of the decision to grant planning permission. It contended that the respondents had failed properly to apply the requirements of para 116 of the National Planning Policy Framework (NPPF) in relation to development in an AONB and had given inadequate reasons for their decision. The claim was dismissed in the court below: see [2015] EWHC 3808 (Admin). The appellant appealed.
Held: The appeal was allowed.
(1) The proposition that a statutory decision-maker had failed to apply the test or criterion that was enjoined by statute was different in character from the proposition that the reasons given for the decision did not demonstrate that the decision-maker had applied the right test. The fact that the second proposition was made out did not meant that it could be inferred that the first was made out also.
In the instant case, the planning officers’ report was replete with references to para 116 of the NPPF and the policy which it enshrined; moreover, the minutes of the committee meeting themselves refers to the AONB as being protected at the highest level by the NPPF. In those circumstances, it was not reasonable to attribute to the councillors who supported the June 2013 resolution an ignorance or misunderstanding of the requirements of para 116. The appellant’s real case was that the respondents had failed to give legally adequate reasons for their decision.
(2) It was established law that the reasons for a decision had to be intelligible and adequate, enabling the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues, disclosing how any issue of law or fact was resolved. The degree of particularity required would depend on the nature of the issues falling for decision: South Bucks District Council v Porter (No 2) [2004 UKHL 33; [2004] 1 WLR 1953 applied.
There were real differences between the decision of a planning inspector reached after a planning inquiry and the resolution of a local planning authority to grant permission. The law should not impose on planning authorities an unduly onerous duty to give reasons, which would delay or complicate the processing of planning applications, since there was a clear public interest in the expeditious resolution of planning issues. Nonetheless, interested parties and the public were just as entitled to know why the decision was reached when it was made by the local planning authority as when it was made by the secretary of state: R (on the application of Hawksworth Securities plc) v Peterborough City Council [2016] EWHC 1870 (Admin) considered.
A local planning authority that was going to authorise a development which would inflict substantial harm on an AONB had to give substantial reasons for doing so. That requirement flowed from the pressing nature of the policy expressed in paras 115 and 116 of the NPPF, under which AONBs had the highest status of protection in relation to landscape and scenic beauty.
It was also relevant that the respondents’ planning committee had departed from the recommendations in the officers’ report. While a planning committee was entitled to reach a different conclusion from the planning officers, if it did so it was obliged, especially in an AONB case, to engage, even if briefly, with the officers’ reasoning: R (on the application of Mevagissey Parish Council) v Cornwall Council [2013] EWHC 3684 (Admin); [2013] PLSCS 302 applied.
A further consideration in the instant case was the respondents’ statutory duty to give reasons, imposed by the EIA Regulations. Where that duty had not been fulfilled by any document produced for the purpose, the decision should be quashed unless the reasons disclosed in the minutes were just as good.
Applying those considerations, the reasons contained in the minutes of the respondents’ planning committee meeting were legally inadequate. They did not make it clear whether the committee had accepted the planning officers’ assessment of the harm which would be inflicted by the development as proposed. If they did not accept that view, then their decision was flawed owing to a failure to articulate any judgment on an issue that was at the very centre of the policy expressed in paras 115 and 116 of the NPPF. If they did accept the officers’ assessment of harm, then they had opted to inflict irreversible harm on the AONB based on exiguous material. If they believed that screening would make a substantial difference to the harm to the AONB threatened by the proposed development, then that view was fragile at best and would have to be supported by considerably more substantial reasoning that a single sentence in the minutes. A statutory statement of reasons made under the EIA Regulations would have been required to grapple with the issue of harm much more closely than the minutes disclosed, and the strictures of para 116 of the NPPF demanded no less.
Ned Westaway (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the appellant; Neil Cameron QC and Zack Simons (instructed by the legal department of Dover District Council) appeared for the respondents; Matthew reed (instructed by Pinsent Masons LLP) appeared for the interested party.
Sally Dobson, barrister
Click here to read transcript: R (on the application of CPRE Kent) v Dover District Council