Town and country planning – Planning permission – residential development – Defendant local authority granting interested parties planning permission for construction of dwelling house on their land – Claimant neighbour applying for judicial review of grant of planning permission – Whether defendants failing to give adequate reasons – Whether defendants failing to comply with statutory obligation to determine application in accordance development plan – Whether defendants failing to take account of policy as material consideration – Application granted
The claimant owned a property in Belper in Derbyshire. The interested parties lived next door in a property that they had bought and developed into a dwelling with the benefit of planning permission. The defendant was the local planning authority for the area. The interested parties obtained planning permission for a development comprising a new house immediately to the north of and behind the claimant’s property on land belonging to them.
The planning officer had recommended approval of the proposed development concluding that, whilst the approval of the application would be a departure from the local plan, the other material considerations were significant and outweighed the presumption against residential development on private gardens and provided justification to support the proposal. Despite being a greenfield site the development was acceptable in terms of scale and character, and made efficient use of the land. A satisfactory access to the highway could be provided and there was limited impact on the amenity of the area and no significant adverse impact on landscape features. Accepting the planning officer’s recommendation, the defendants said that the development complied with the provisions of the development plan for the locality and raised no unresolved issues in relation to the location of the site, privacy, amenity, sunlight/daylight, character and design, landscape or heritage features and highway safety.
At the relevant time, December 2012, pursuant to article 31(1)(a)(i) and (ii) of the Town and Country Planning (Development Management Order) (England) Order 2010, a local authority was obliged to provide both a summary of its reasons for all grants of planning permission and a summary of the policies and proposals in the development plan relevant to that permission.
The claimant applied for judicial review of the decision to grant planning permission. He contended that the defendants had: (i) failed to give adequate reasons for their decision; (ii) failed to comply with their statutory obligation to determine the application in accordance with the development plan unless other material considerations indicated otherwise; (iii) failed to take into account a particular element of policy as a material consideration; and imposed a condition that was unenforceable.
Held: The application was granted.
(1) When planning permission was granted, only summary reasons were required. The duty to give summary reasons was not to be equated with either the obligation to give full reasons for refusing permission, or the obligation imposed on the secretary of State, or an inspector acting in his behalf, to give reasons when determining a planning appeal. However, the summary reasons had to be sufficient to enable a member of the public with an interest in the lawfulness of the permission granted to understand the rationale of the decision, and to ascertain whether, in granting the permission, the decision-maker correctly interpreted relevant policies. Whether summary reasons given are adequate will depend on the circumstances of the particular case. An important circumstance was whether a decision-making committee agreed with the officer’s report. Absent any indication to the contrary, it could usually be assumed that a committee which agreed with an officer’s recommendation also agreed with that officer’s reasoning, so that short summary reasons would be adequate. In particular, in those circumstances, the committee could be assumed to agree with the officer’s analysis of relevant policies. But, where the committee disagreed with the officer’s recommendation, it had to be evident from the summary reasons how and why the committee had rejected the officer’s advice and thus had come to the conclusion to which they had come. Whilst the standard of reasons did not, as a matter of law, change, in practice it was likely that summary reasons would have to be drafted with greater care where the committee disagreed with the recommendation of the officer, to enable members of the public to understand the rationale of their decision, and to make it apparent that they had understood and properly applied relevant policies: R (on the application of Siraj) v Kirklees Metropolitan Council [2010] EWCA Civ 1286 and R (on the application of Macrae) v County of Herefordshire District Council [2012] EWCA Civ 457 considered.
(2) Where the committee did not follow the recommendation of the officer’s report, then reasons more extensive than a mere short summary might be required to show that there was be a rational and discernible basis for not doing so. Where a committee granted planning permission contrary to the advice and recommendation of the officers’ report, it could not usually be assumed that they had relied on the officers’ analysis. In those circumstances, although always depending on the facts of the particular case, fuller summary reasons might be required. A member of the public with an interest in challenging the lawfulness of planning permission would not necessarily be able to ascertain from the officer’s report whether, in granting planning permission, the members correctly interpreted the local policies and took all relevant matters into account and disregarded irrelevant matters. R (on the application of Cherkley Campaign Ltd) v Mole Valley District Council [2013] EWHC 2582 (Admin), and R (on the application of Wildie) v Wakefield Metropolitan District Council [2013] EWHC 2769 (Admin) and R (on the application of Mevagissey Parish Council) v Cornwall Council [2013] EWHC 3684 (Admin) considered.
(3) In the present case, the defendants had failed to comply with their obligation to give summary reasons under article 31(1)(a)(i) of the 2010 Order. Whilst it had been open to the defendants’ board to make the finding that it had, it had been a finding contrary to the officer’s report. The summary reasons had not indicated on their face that the board had adopted the right legal approach or had understood that the original application plan had set up a presumption that the application site fell outside the garden/cartilage in accordance with the approach adopted by Sullivan J and approved by the Court of Appeal in Barnett v Secretary of State for Communities and Local Government [2008] EWHC 16012 (Admin); [2008] PLSCS 176, [2009] EWCA Civ 476; [2009] PLSCS 110. Therefore a question arose why, if the board members had appreciated and applied that approach, they had disagreed with the officer’s view. The claimant and other members of the public could not determine from the summary reasons why the defendants had granted planning permission for the development. Accordingly, the grant of planning permission would be quashed and the application remitted to the defendants for redetermination.
Jenny Wigley (instructed by Public Access) appeared for the claimant; Andrew Hogan (instructed by Geldards LLP) appeared for the defendants; The interested party did not appear and were not represented.
Eileen O’Grady, barrister
