Town and country planning – Planning permission – Residential development – residential – Appellant challenging grant of planning permission for mixed-use development including housing – Whether respondent planning authority misled on material matters by error in planning officer’s report as to unmet housing need – Whether that error affecting outcome of decision – Appeal dismissed
In August 2014, the first respondent council granted planning permission to the second respondents for a mixed-use development, including 200 dwellings, on 33.6ha of land forming part of the former Defence Evaluation and Research Agency (DERA) site north of the M3 at Chobham Lane, Chertsey, Surrey. The site lay within the metropolitan green belt and therefore attracted the special protection accorded to green belt land under section 9 of the National Planning Policy Framework (NPPF), such that, by para 87 of the NPPF, development was not to be approved except in very special circumstances. The appellant owned other land nearby.
The first respondents’ decision to grant planning permission followed a report from their planning officer which advised that it would not be possible to demonstrate a five-year supply of housing land, in accordance with para 49 of the NPPF, without the inclusion of the housing proposed to be built on the application site. That consideration was regarded as amounting to “very special circumstances” justifying the grant of planning permission.
The officer’s advice was based on the first respondents’ emerging local plan core strategy (LPCS), which indicated a need for 595 new homes per year for the period 2013 to 2018, but proposed a provision of only 220 new homes per year, and on a housing technical paper prepared in support of the LPCS. In fact, the advice was erroneous since the technical paper showed that the proposed 220 homes per year could be provided without using the second respondents’ site; moreover, the addition of that site would be insufficient to meet the unmet need for 595 new homes. The LPCS was subsequently withdrawn.
In the court below, the judge held that the officer’s report had materially misled the first respondents about material matters but that the planning permission should not be quashed since, in light of the unmet housing need, which was greater than previously thought, the first respondents would inevitably have reached the same decision in any event: see [2015] EWHC 823 (Admin); [2015] PLSCS 105. The appellant appealed.
Held: The appeal was dismissed.
(1) The appeal was governed by CPR 55.11(1) and was therefore limited to a review of the decision of the lower court rather than a rehearing. The task of the appeal court was therefore to determine whether the judge was “wrong” by asking whether she had legitimate and proper grounds for reaching the decision she did, rather than simply approaching the matter afresh.
When conducting a review, it would often be appropriate for the appeal court to give weight to the assessment of the facts made by the judge below, even where that assessment had been made on the basis of written evidence which was also available to the appeal court. The weight to be given to the judge’s own assessment would vary depending on the circumstances of each particular case, the nature of the finding or factual assessment that had been made and the nature and range of evidential materials bearing on it. A judge would often make a factual assessment by taking into account, expressly or implicitly, a range of written evidence and making an overall evaluation of what it showed. The weight to be accorded to the considered view of a judge at first instance might also be enhanced where the judge had a particular expertise in the area in question or where the judge had had a fuller opportunity at the hearing before her to go into the case and understand it in the round than the appeal court might be able to achieve at the hearing of an appeal. Both of those factors applied in the instant case.
(2) The advice in the officer’s report, that the grant of permission for the proposed mixed development of the site would make the difference between the first respondents being able to demonstrate an adequate five year housing land supply or not, was incorrect and misleading either on the basis of the lower 220 figure or the higher 595 figure for new dwellings per year for the relevant five-year period. While the judge had found that the erroneous advice materially misled the first respondents on material matters, she had nonetheless been entitled to refuse relief in the exercise of her discretion.
The judge had understood the nature of the case presented by the appellant, namely that the housing contribution provided on the second respondents’ site would be insignificant and that accordingly it could not be assumed that the first respondents, if properly advised, would have found very special circumstances to exist. She had rejected that case and, in doing so, had implicitly found that the creation of 200 new homes on an achievable and deliverable housing site was a significant contribution to meeting the pressing housing need in the first respondents’ area. That was an assessment which she was fully entitled to make.
The judge had correctly approached the matter by reference to the full, objectively assessed needs of the area rather than any lower target figure. It was well open to her to assess that, if properly advised, the first respondents would have judged the proposed development of the site to be an obviously justified way in planning terms to make a significant contribution to meeting the dire housing needs of their area, at minimal cost to the green belt and on a particularly well-placed location in infrastructure terms; in that connection, she had correctly noted that the site was already developed, being extensively covered by dilapidated buildings, and that the impact on the openness of the green belt from development there would be limited: St Albans County Council v Hunston Properties Ltd [2013] EWCA Civ 1610; [2014] JPL 519; [2014] 1 EGLR 79; [2014] EGILR 7 applied. Nor had the judge underestimated the stringency of the “very special circumstances” test under para 87 of the NPPF.
Against that background, the judge was entitled to conclude that, had the first respondents been properly advised about the position in relation to housing need in their area, they would inevitably have made the same decision to grant planning permission: Simplex GE (Holdings) Ltd v Secretary of State for the Environment (1989) 57 P&CR 306; [1988] 3 PLR 25 applied.
James Maurici QC and Alistair Mills (instructed by Allen & Overy LLP) appeared for the appellant; David Forsdick QC and Heather Sargent (instructed by the legal department of Runnymede Borough Council) appeared for the first respondents; Reuben Taylor QC (instructed by Charles Russell Speechlys LLP) appeared for the second respondents.
Sally Dobson, barrister
