Planning permission – Development plan – Permission granted for housing development contrary to current development plan policy – Development supported by draft local development framework in early stages of consultation – Whether local planning authority breaching obligation to determine applications in accordance with development plan unless material considerations indicate otherwise – Whether granting permission prematurely in breach of legitimate expectation that scale and location of new housing to be determined through plan process – Claim dismissed
The claimant was a company set up by residents in the Axminster area to promote the preservation of local parkland and meadows as an open space and recreational facility. It opposed the interested party’s plans to carry out a residential development on an area of land outside Axminster; the proposed development site largely consisted of rough agricultural grassland although it also included a sports centre. In March 2011, the defendant council granted planning permission to the interested party for a development of 400 homes on the site, with a 40% element of affordable housing secured by a planning agreement; the agreement also provided for the retention and enhancement of the sports centre. The development was contrary to policies in the then current local plan concerning the protection of the countryside. However, it accorded with the preferred policy approach in a draft local development framework (LDF), which was then in the early stages of mandatory public consultation, and which dealt with the allocation of land for large-scale housing developments. The defendants concluded that the benefits of the development outweighed the conflict with the development plan.
The claimant applied for judicial review of the decision to grant planning permission. It contended that, by determining the planning application on the basis of the draft LDF rather than existing planning policies, the defendants had failed to comply with their obligation, under section 38(6) of the Town and Country Planning Act 2004 to determine the planning application in accordance with the development plan unless material considerations indicated otherwise. The claimant submitted that the defendants had given no adequate reasons for departing from the current development plan. It further submitted that the grant of permission was premature and that the defendants had breached a legitimate expectation that their strategic decision as to the scale and location of new housing in Axminster would be made through the LDF process, by giving consideration to responses to the consultation, and not through a planning application that pre-empted the LDF consultation.
Held: The claim was dismissed.
(1) The effect of granting planning permission on emerging development plan documents could be a material consideration. The report that the defendants’ planning officer had submitted to the planning committee made clear that there were policies and factors weighing both against and in favour of the grant of planning permission. It had acknowledged that the proposed development accorded with the emerging LDF policy approach identified in the preferred options but that the LDF should be given only limited weight since it was at an early stage. The report was full and detailed and could not be said to have misled the committee about any material matters: R v Selby District Council, ex parte Oxton Farms [1997] EWCA Civ 4004; [1997] EGCS 60 and R v Mendip District Council, ex parte Fabre (2000) 80 P&CR 500; [2000] PLSCS 6 applied. The defendants had been required to undertake a balancing exercise, involving the judgment of the members of the committee and the striking of a planning balance. The reasons that the defendants had given for their decision made it clear that they were aware both of the required approach under the 2004 Act, namely to determine applications in accordance with the development plan unless material considerations indicated otherwise, and that the proposed development was contrary to development plan policy. The weight to be given to any particular material consideration, and the making of a planning judgment, was a matter for the defendants, not for the court: Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759; [1995] 2 EGLR 147; [1995] 27 EG 154 applied. The defendants had paid regard to the development plan and to all material considerations and had been entitled to exercise their judgment in favour of granting planning permission. Their reasons were sufficient to tell an informed reader why the application was allowed.
(2) While it might sometimes be justifiable to refuse planning permission on grounds of prematurity, where a new development plan document was being prepared or was under review but had not yet been adopted, there was no such justification in the instant case. Putting in place a new development plan was a complex and time-consuming exercise that could take several years from commencement to final approval. The LDF process was at an early stage and, in the meantime, the defendant had a continuing obligation to determine planning applications as and when submitted on the basis of existing policy and other material considerations. A refusal on the basis of prematurity would not have been consistent with national planning policy and would have been in breach of central government guidance on the matter. There were no grounds for asserting a breach of legitimate expectation. In order for a legitimate expectation to arise, there had to be a representation by a public body on which the claimant could reasonably rely, or the public body had to have adopted a regular practice, which the claimant could reasonably expect to continue: Rowland v Environment Agency [2003] EWCA Civ 1885; [2005] Ch 1; [2003] PLSCS 291 and R (on the application of Godfrey) v Southwark London Borough Council [2012] EWCA Civ 500; [2012] PLSCS 91 applied. The defendants had given no specific undertaking to any particular individual or group.
David Wolfe QC (instructed by Leigh Day & Co) appeared for the claimant; Adrian Trevelyan Thomas (instructed by the legal department of East Devon District Council) appeared for the defendants; Reuben Taylor (instructed by Clarke Wilmott LLP, of Bristol) appeared for the interested party.
Sally Dobson, barrister
R (on the application of Save Our Parkland Appeal Ltd) v East Devon District Council
Planning permission – Development plan – Permission granted for housing development contrary to current development plan policy – Development supported by draft local development framework in early stages of consultation – Whether local planning authority breaching obligation to determine applications in accordance with development plan unless material considerations indicate otherwise – Whether granting permission prematurely in breach of legitimate expectation that scale and location of new housing to be determined through plan process – Claim dismissedThe claimant was a company set up by residents in the Axminster area to promote the preservation of local parkland and meadows as an open space and recreational facility. It opposed the interested party’s plans to carry out a residential development on an area of land outside Axminster; the proposed development site largely consisted of rough agricultural grassland although it also included a sports centre. In March 2011, the defendant council granted planning permission to the interested party for a development of 400 homes on the site, with a 40% element of affordable housing secured by a planning agreement; the agreement also provided for the retention and enhancement of the sports centre. The development was contrary to policies in the then current local plan concerning the protection of the countryside. However, it accorded with the preferred policy approach in a draft local development framework (LDF), which was then in the early stages of mandatory public consultation, and which dealt with the allocation of land for large-scale housing developments. The defendants concluded that the benefits of the development outweighed the conflict with the development plan.The claimant applied for judicial review of the decision to grant planning permission. It contended that, by determining the planning application on the basis of the draft LDF rather than existing planning policies, the defendants had failed to comply with their obligation, under section 38(6) of the Town and Country Planning Act 2004 to determine the planning application in accordance with the development plan unless material considerations indicated otherwise. The claimant submitted that the defendants had given no adequate reasons for departing from the current development plan. It further submitted that the grant of permission was premature and that the defendants had breached a legitimate expectation that their strategic decision as to the scale and location of new housing in Axminster would be made through the LDF process, by giving consideration to responses to the consultation, and not through a planning application that pre-empted the LDF consultation.Held: The claim was dismissed.(1) The effect of granting planning permission on emerging development plan documents could be a material consideration. The report that the defendants’ planning officer had submitted to the planning committee made clear that there were policies and factors weighing both against and in favour of the grant of planning permission. It had acknowledged that the proposed development accorded with the emerging LDF policy approach identified in the preferred options but that the LDF should be given only limited weight since it was at an early stage. The report was full and detailed and could not be said to have misled the committee about any material matters: R v Selby District Council, ex parte Oxton Farms [1997] EWCA Civ 4004; [1997] EGCS 60 and R v Mendip District Council, ex parte Fabre (2000) 80 P&CR 500; [2000] PLSCS 6 applied. The defendants had been required to undertake a balancing exercise, involving the judgment of the members of the committee and the striking of a planning balance. The reasons that the defendants had given for their decision made it clear that they were aware both of the required approach under the 2004 Act, namely to determine applications in accordance with the development plan unless material considerations indicated otherwise, and that the proposed development was contrary to development plan policy. The weight to be given to any particular material consideration, and the making of a planning judgment, was a matter for the defendants, not for the court: Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759; [1995] 2 EGLR 147; [1995] 27 EG 154 applied. The defendants had paid regard to the development plan and to all material considerations and had been entitled to exercise their judgment in favour of granting planning permission. Their reasons were sufficient to tell an informed reader why the application was allowed.(2) While it might sometimes be justifiable to refuse planning permission on grounds of prematurity, where a new development plan document was being prepared or was under review but had not yet been adopted, there was no such justification in the instant case. Putting in place a new development plan was a complex and time-consuming exercise that could take several years from commencement to final approval. The LDF process was at an early stage and, in the meantime, the defendant had a continuing obligation to determine planning applications as and when submitted on the basis of existing policy and other material considerations. A refusal on the basis of prematurity would not have been consistent with national planning policy and would have been in breach of central government guidance on the matter. There were no grounds for asserting a breach of legitimate expectation. In order for a legitimate expectation to arise, there had to be a representation by a public body on which the claimant could reasonably rely, or the public body had to have adopted a regular practice, which the claimant could reasonably expect to continue: Rowland v Environment Agency [2003] EWCA Civ 1885; [2005] Ch 1; [2003] PLSCS 291 and R (on the application of Godfrey) v Southwark London Borough Council [2012] EWCA Civ 500; [2012] PLSCS 91 applied. The defendants had given no specific undertaking to any particular individual or group.David Wolfe QC (instructed by Leigh Day & Co) appeared for the claimant; Adrian Trevelyan Thomas (instructed by the legal department of East Devon District Council) appeared for the defendants; Reuben Taylor (instructed by Clarke Wilmott LLP, of Bristol) appeared for the interested party.Sally Dobson, barrister
