Planning permission – Reasons – Respondents granting planning permission for affordable housing development – Stated reasons for decision indicating that development complying with draft local plan policy – Development not so complying – Appellants challenging lawfulness of planning permission – Respondents giving evidence as to reasons for grant in terms contradicting stated reasons – Whether judge erring in accepting accept that evidence in preference to official records – Error of law found – Appeal dismissed for other reasons
In November 2011, the respondent council granted planning permission to the interested party for a development of 25 affordable dwellings on a greenfield site just outside the large village of Lanner near Redruth, Cornwall. In reaching their decision, the respondents took into account a draft local plan, the policy of which was to discourage affordable housing development outside towns and villages with the exception of small schemes of affordable housing to meet local need, comprising no more than about 12 dwellings in the larger villages or six in the smaller villages. In their reasons for the grant of planning permission, the respondents indicated that the development accorded with that policy.
The appellant parish council brought a claim by way of judicial review, seeking to quash the grant of planning permission on the primary ground that the respondents had misunderstood and misapplied the draft local plan policy. They submitted that the respondents had erred in their view that the development accorded with that policy and, further, had lacked sufficient material on which to find a need for the affordable housing. The respondents gave evidence that they had not misconstrued the policy and had been well aware that it permitted only 12 dwellings.
Dismissing the claim, the judge found that the respondents had understood that the development did not accord with the policy in the draft local plan, had lawfully exercised their discretion to approve the development notwithstanding that non-compliance, and had had sufficient evidence of housing need on which to do so.
The appellants appealed. In the meantime, the respondents made a fresh grant of planning permission for the development, the validity of which was not disputed.
Held: The appeal was dismissed.
Although the unadopted draft local plan was not a development plan to which the respondent had been obliged to have regard under section 70(2) of the Town and Country Planning Act 1990, its policies were none the less material considerations. The law required only that the respondents’ planning committee understand the draft local plan policy and take it into account; the weight that they gave to that consideration was a matter for them. However, both the planning officer’s report and the respondents’ stated reasons for the decision showed that the committee had fallen into error by misunderstanding the policy, treating it as favouring the grant of permission, when in fact it did the contrary.
The respondents had been under a statutory obligation, pursuant to article 31 of the Town and Country Planning (Development Management Procedure) (England) Order 2010, to give reasons for their decision. The planning permission with the reasons attached was a public document, which anyone was entitled to inspect. The reasons in that document wrongly stated that the proposed development accorded with the draft local plan policy, so revealing a misunderstanding of the policy. The respondents should not have been permitted to adduce evidence contradicting their own stated reasons. Challenges to the actions and decisions of public bodies generally proceeded on the basis of the primary documents and records, supplemented by any necessary written evidence. Save in exceptional circumstances, a public authority should not be permitted to adduce evidence that directly contradicted their own official records of what they had decided and how their decisions had been reached. The planning officer’s report, the minutes of the planning committee and the stated reasons for the grant of planning permission were official documents on which members of the public were entitled to rely and they all indicated a misunderstanding of the policy. The respondents should not have been permitted to rely on evidence that contradicted those official documents; alternatively, the judge should not have accepted such evidence in preference to the respondents’ own official records: R v Westminster City Council, ex parte Ermakov [1996] 2 All ER 302 applied.
However, it was not appropriate to quash the November 2011 planning permission since it was no longer operative. The remedy of a quashing order was discretionary and the court would not make a quashing order that served no useful purpose. Further, the respondents had had accurate and sufficient information about local housing needs on which to make the November 2011 grant of planning permission.
Philip Coppel QC (instructed by Follett Stock LLP of Truro) appeared for the appellants; James Findlay QC and Sancho Brett (instructed by the legal department of Cornwall Council) appeared for the respondents.
Sally Dobson, barrister