Town and country planning – Community Infrastructure Levy – Highways – Claimant applying for judicial review of grant of planning permission for residential development – Whether planning officer’s report containing inaccurate or misleading advice as to the meaning and effect of regulation 123 of the Community Infrastructure Levy Regulations 2010 – Whether officer rightly advising that developers not required to provide highway improvements to be funded by community infrastructure levy – Whether officer’s conclusion that no reasons in transport terms to justify refusal of planning permission unassailable – Application dismissed
The claimant challenged the decision of the defendant local authority to grant the interested party outline planning permission for a development of up to 390 dwellings at Brodricklands and Hamlands Farm, Willingdon, in East Sussex. The application site was about 32 ha of farmland not allocated for development in the development plan. It lay next to the administrative boundary between the district of Wealden and the borough of Eastbourne. The claimant’s home was next to the site. She objected to the proposal. Her application for permission to apply for judicial review was refused on the papers. A renewed application for permission was also refused and the claimant sought permission to appeal against that decision. The Court of Appeal granted permission and ordered that the claim be retained for determination in the Court of Appeal under CPR 52.15(3) and (4) (now CPR 52.8(5) and (6)).
The main issue in the claim was whether the advice given by the defendant’s principal planning officer to the planning committee when it considered the proposal materially misled the members on the effect of regulation 123 of the Community Infrastructure Levy Regulations 2010 (the CIL regulations). The claimant also submitted that her advice on the acceptability of the likely impact of traffic generated by the development on local junctions was wrong.
Held: The application was dismissed.
(1) When considering a challenge to a grant of planning permission in which criticism was made of a planning officer’s report to committee, minor or inconsequential errors were to be distinguished from advice that was significantly or seriously misleading in a material way. Unless there was some distinct and material defect in the officer’s advice, the court would not interfere: Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314; [2017] PLSCS 174 followed. Applying that approach here, the officer’s relevant advice, read fairly as a whole, was not flawed in such a way as to invalidate the defendant’s grant of planning permission. Although the officer’s report could fairly be criticised as failing to explain the true scope of regulation 123 of the CIL regulations, her advice on traffic impact, taken in its entirety, was not materially misleading, and the decision made in the light of it was not unlawful. It was important to read the relevant parts of an officer’s report to committee fully and fairly, and to recognise the distinction between such advice, as the product of the officer’s own planning judgment, and views expressed by consultees.
(2) Regulations 122(2) and 123(2) prescribed the circumstances in which planning obligations made under section 106 of the Town and Country Planning Act 1990 might or might not constitute a reason for granting planning permission. Regulation 123(2A) identified certain kinds of restriction that might not be imposed on a grant of planning permission by way of conditions. Those provisions operated as adjustments to the statutory scheme where it allowed and required local planning authorities, when determining applications for planning permission, to have regard to planning obligations as material considerations, and where it provided the power to impose planning conditions. They did not compel a local planning authority to grant planning permission for a proposed development if, for whatever reason, that development was unacceptable in planning terms, or if it could not be made acceptable either by a planning obligation, or by the imposition of conditions. They did not preclude planning permission being refused if, for example, the local planning authority considered that the local road network would not be able to cope satisfactorily with the traffic generated by the proposed development. Nor did they preclude planning permission being granted subject to a lawful condition specifically preventing the occupation of the development until necessary infrastructure, such as the improvement of a particular road junction, had been provided, even if that was not within the power of the applicant: Grampian Regional Council v City of Aberdeen District Council [1984] 47 P & CR 633 and British Railways Board v Secretary of State for the Environment [1993] 3 PLR 125 followed.
(3) In the present case, the deficiency in the officer’s report did not go to the substance of her own assessment of the acceptability of the proposed development in highway terms or impair her consideration of the likely effects of traffic generated by the development. The shortcomings in her advice were overridden by her subsequent assessment and advice. Her approach was pragmatic and realistic. She did not automatically and unquestioningly adopt the county council’s position in its second consultation response, though she ultimately agreed with the county council’s view that a refusal of planning permission on highway grounds could not be justified. The advice she gave was based on her own exercise of planning judgment. Throughout her assessment the officer concentrated on the likely funding and, crucially, the likely timing of improvements to junctions on the local road network. The main theme in her assessment, on which her conclusions and advice were based, was the probable timing of the works involved in the junction improvements and of the implementation of the proposed development and other development in the area. The officer’s conclusions were all reasonable and well within the scope of a lawful exercise of planning judgment.
Saira Kabir Sheikh QC and Hugh Flanagan (instructed by Thomson Snell and Passmore LLP) appeared for the claimant; Richard Langham (instructed by Sharpe Pritchard LLP) appeared for the defendant; Rupert Warren QC (instructed by Eversheds Sutherland (International) LLP) appeared for the interested party.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Oates) v Wealden District Council
