Town and country planning – Planning permission – Area of outstanding natural beauty (AONB) – Claimant objector applying for judicial review of decision of defendant local authority to grant planning permission for recreational development of agricultural land – Whether defendants failing to consider or apply para 116 of the National Planning Policy Framework – Whether defendants reaching irrational conclusion that the proposed development would not harm the AONB – Whether defendants failing to fulfil common law duty to give reasons for their decision when not following planning officer’s recommendation and application concerning protected AONB – Application granted
The interested parties applied for planning permission for 12 holiday lodges and associated recreational development on their land at Little Densole Farm, Canterbury Road, Densole, Kent. The site, currently used as agricultural land, was in an area of outstanding natural beauty (AONB) and a special landscape area (SLA). The claimant, who lived near to the site, was one of many local objectors to the proposed development. The planning officer’s report, having referred to para 115 of the National Planning Policy Framework (which required great weight to be given to conserving landscape and scenic beauty in AONBs), recommended that permission be refused as a result of the harm which the proposed development would cause to the AONB and local development policy which advised that planning permission should be refused in AONBs and SLAs except in exceptional circumstances where it could be demonstrated that the proposal was in the public interest and essentially required an AONB countryside location. However, the defendant local authority did not accept the recommendation and the planning committee resolved to grant planning permission on the basis that it would not harm the AONB.
The claimant applied for judicial review of that decision contending that the defendants: (i) had failed to consider or apply para 116 of the NPPF, which provided that planning permission should be refused for major developments in areas designated as National Parks and AONBs except in exceptional circumstances and where it could be demonstrated they were in the public interest; (ii) had reached an irrational conclusion that the proposed development would not harm the AONB; and (iii) had failed to fulfil their common law duty to give reasons for their decision since they was not following the planning officer’s recommendation and the application concerned a protected AONB.
Held: The application was granted.
(1) Although the planning officer’s report did not address para 115 or 116 of the NPPF directly, it was clear from the report that the substance of those provisions had been treated as applicable to the proposed development. The officer’s report had provided detailed and reliable advice on the relevant policies. Moreover, planning committee members were an informed readership and could be expected to have knowledge of local and national planning policies. They had been given sufficient material to decide whether para 116 applied and, if so, to what effect. Due to the lack of any reliable record of the planning committee meeting, the court could not be satisfied, on the balance of probabilities, that the committee did not consider para 116 and, since the burden of proof rested upon the claimant, his challenge under that ground did not succeed: R v Mendip District Council, ex p. Fabre (2000) 80 P & CR 500; [2000] PLSCS 6 and R v Selby District Council, ex parte Oxton Farms [1997] EGCS 60 considered.
(2) Since there was a gulf between the assessment of wide-ranging harm in the officer’s report and the assessment of no or limited harm in the planning statement and low to negligible, slight adverse, harm in the landscape and visual impact assessment (LVIA), the planning committee was entitled, in the exercise of its planning judgment, to prefer the assessment in the interested parties’ supporting reports. However, the minutes did not explain why members concluded that there was no harm when the report and the objectors (some of whom had specialist expertise) identified wide-ranging harm and even the interested parties’ supporting reports identified some harm. The committee also ought to have explained why it departed from the officer’s report assessment that the development would fail to conserve and enhance the landscape and natural beauty of the area, with regard to matters not fully addressed in the planning statement or the LVIA. As the court did not know what the committee’s reasons were, it was unable to judge whether or not the committee was acting irrationally. There was a high threshold to surmount before a finding of irrationality could properly be made. The burden of proof rested upon the claimant and he had failed to establish irrationality.
(3) In the present case, the planning committee was under a common law duty to give reasons because it was departing from the planning officer’s recommendation. Moreover, the application was controversial as it concerned a protected AONB. The standard of reasons required was whether the information provided by the local authority left room for genuine doubt as to what it had decided and why. The minutes of the planning committee meeting did not enable the reader to understand why the matter been decided as it had and what conclusions were reached on the principal important controversial issues, disclosing how any issue of law or fact was resolved in respect of the application of para 116 of the NPPF and the assessment of harm to the AONB. The defendants’ reasons for granting planning permission were inadequate. The defect in reasons went to the heart of the justification for the planning permission and undermined its validity. The court was unable to conclude, under section 31(2A) of the Senior Courts Act 1981, that it was highly likely that the outcome would not have been substantially different if the committee had addressed its mind properly to the reasons for rejecting the matters raised in the report and to the application of para 116. Accordingly, the decision to grant permission had to be quashed: South Buckinghamshire District Council v Porter (No 2) [2004] UKHL 33; [2004] 1 WLR 1953 and Dover District Council v CPRE [2017] UKSC 79; [2018] EGLR 1 followed.
Marc Willers QC (instructed by Richard Buxton, of Cambridge) appeared for the claimant; Daniel Stedman Jones (instructed by LRS solicitors and Planning Consultants, of Colchester) appeared for the defendants; Megan Thomas (instructed by Direct Access) appeared for the interested parties.
Eileen O’Grady, barrister
Click here to read transcript: R (on the application of Steer) v Shepway District Council
