Planning permission – Metropolitan open land – Development plan – Appellant appealing against refusal of application for judicial review of planning permission for electricity generation facility – Whether respondent local authority failing to comply with duty under section 38 of the Planning and Compulsory Purchase Act 2004 –Appeal allowed
The respondent local authority granted planning permission for a three-turbine electricity generation facility at Teddington Weir, Teddington Lock, on the River Thames which was an area designated as metropolitan open land (MOL) and was in a conservation area.
The appellant was the leasehold owner of land and buildings on Broom Road, Teddington, upon which it operated a leisure club, conference, hotel and events facilities. The garden and parkland of their property ran from the main building complex towards the River Thames. The appellant applied for judicial review of the decision contending, among other things, that the respondents had failed to comply with their duty under section 38(6) of the Planning and Compulsory Purchase Act 2004 in that they failed to have proper regard to provisions in the development plan.
The High Court dismissed the application holding, on that point, that the absence of any express reference to section 38(6) was immaterial. It was obvious that the officers’ reports concluded that the development was in conformity with the development plan and the officers did correctly identify the principal policies which informed their assessment of the material planning issues in relation to the application: see [2016] EWHC 980 (Admin).
The appellant appealed contending that the respondents had failed to take into account a range of policies including policy 7.17 of the London Plan 2015.
Held: The appeal was allowed.
(1) Section 38(6) imposed a duty to make a decision or determination by giving the development plan priority, weighing all other material considerations in the balance to establish whether the decision should be made, as the statute presumed, in accordance with the plan. The decision-maker had to understand the relevant provisions of the plan, recognising that they might sometimes pull in different directions. Section 38(6) did not prescribe the way in which the decision-maker was to go about discharging the duty. However, it could only be properly performed if the decision-maker established whether or not the proposal accorded with the development plan as a whole. Furthermore, the duty under section 38(6) was not displaced or modified by government policy in the NPPF which did not have the force of statute. Nor did it have the same status in the statutory scheme as the development plan. Its relevance to a planning decision is as one of the other material considerations to be weighed in the balance: BDW Trading Ltd v Secretary of State for Communities and Local Government [2016] EWCA Civ 493; [2016] PLSCS 161 followed.
(2) An officer’s report containing a planning authority’s reasons for granting planning permission was to be read fairly as a whole, focusing on the substance of the matter rather than the form. If it appeared as a matter of substance that matters relevant to the proper application of policies in the development plan had been appropriately identified and assessed, that would be sufficient. Such reports were to be read against the background that they were written for an informed audience (the planning committee) who might be taken to have a reasonable understanding of, or the means of checking on, the local context and the legislative and policy framework in which the decision was to be taken: see R v Mendip District Council, ex p. Fabre [2000] 80 P&CR 500; [2000] PLSCS 6, Oxton Farms, Samuel Smith’s Old Brewery (Tadcaster) v Selby District Council (CA, 18 April 1997) 1997 PLSCS 105 and R (Trashorfield Ltd) v Bristol City Council [2014] EWHC 757 (Admin); [2014] PLSCS 180.
(3) Policy 7.17, at subsection B, was in clear and unqualified terms. The protection to be afforded to the MOL was to be equivalent to, and no less than, the protection afforded to the green belt in national policy. That appeared from (i) the opening words (“The strongest protection should be given to London’s [MOL]”); (ii) the fact that “inappropriate development” is a recognised and clearly defined concept for the purposes of the protection of the Green Belt, so that it is natural to read the words used here as a reference to that concept; (iii) the express statement that the protection given under the policy should be “the same level of protection as in the Green Belt” (my emphasis); and (iv) the consideration that the policy in subsection B falls to be interpreted in the light of the commentary in para. 7.56, which states in terms that “The policy guidance of paragraphs 79-92 of the NPPF on Green Belts applies equally to [MOL]”, making clear the intention of cross-reference under the policy to paras. 89 and 90 of the NPPF defining what is to count as “appropriate development”. Accordingly, the judge had erred in his approach to the proper interpretation of policy 7.17. The respondents had failed to appreciate that the planning application was for development which was inappropriate in the context of MOL and therefore failed to ask itself the critical question, whether very special circumstances existed which justified the grant of planning permission.
(4) This was not a case in which relief should be refused in the exercise of discretion by the court under section 31(2A) of the Senior Courts Act 1981 or as a matter of any wider discretion as to remedy. Once the correct interpretation of policy 7.17 was identified, as a matter of substance the respondents had gone badly wrong in their consideration of the planning merits of the application. It had failed to identify the development as inappropriate development in an area of MOL requiring the strongest protection against such development. It failed to consider whether, notwithstanding the inappropriateness of the development, very special circumstances existed to justify the grant of planning permission, and it was far from obvious that they did. In light of the strictness of policy 7.17 and the importance of the public interest it protected, it could not be said that it was highly likely that the outcome for the appellant would not have been substantially different if the conduct complained of (i.e. failure to understand and apply policy 7.17 correctly) had not occurred.
Christopher Lockhart-Mummery QC (instructed by Howes Percival LLP) appeared for the appellant; Daniel Kolinsky QC (instructed by South London Legal Partnership) appeared for respondents.
Eileen O’Grady, barrister
