Town and country planning – Planning permission – Reasons – Appellant local authority granting planning permission for two-storey dwelling house – Respondent successfully applying for judicial review – Appellant appealing – Whether judge erring in law in finding need to provide reasons for conclusion that development would be “limited infilling” within para 89 of the National Planning Policy Framework (NPPF) – Appeal dismissed
The appellant county council, as local planning authority, appealed against an order of the court allowing a claim for judicial review brought by the respondent, challenging its grant of outline planning permission to the interested party for the erection of a two-storey dwelling-house on land west of “Bramblings”, in the village of Tranwell Woods, near Morpeth in the Northumberland Green Belt. The respondent, who lived nearby was an objector to the proposal. In a decision letter dated 9 January 2009 an inspector had dismissed an appeal against the refusal of planning permission for similar development on the same site, finding that the proposal was not for “limited infilling in villages” within the exception in para 89 of the National Planning Policy Framework (NPPF).
The respondent’s challenge to the appellant’s decision included grounds contending that the planning committee had misinterpreted the concepts of “village” and “limited infilling” in para 89 of the NPPF, that it was inconsistent with the inspector’s decision of 9 January 2009, and that the reasons for the grant of planning permission, apparent in the planning officer’s report, were inadequate. The judge accepted that, in the circumstances, reasons should have been given for the appellant’s conclusion that the proposal was for limited infilling: [2017] EWHC 665 (Admin).
The appellant contended that the judge erred in law in finding that there was a need for express reasons to be given for the specific decision/finding of the planning committee that the development amounted to limited infilling in a village for the purposes of para 89, and (even if there was such a need), separately finding that the reasons given were inadequate in law. The sole issue on appeal was whether the appellant had erred in law by failing to provide reasons for its conclusion that the construction of a dwelling on this site would constitute limited infilling, given the conclusion of the inspector in the 2009 appeal that such development was not “infill” development.
Held: The appeal was dismissed.
(1) The question of whether a particular proposed development was to be regarded as limited infilling in a village for the purposes of the policy in para 89 of the NPPF would always be essentially a question of fact and planning judgment for the planning decision-maker. There was no definition of “infilling” or “limited infilling” in the NPPF, nor any guidance there, to assist that exercise of planning judgment. It was left to the decision-maker to form a view, in the light of the specific facts, whether the proposed development could be regarded as “limited infilling”, or not, having regard to the nature and size of the development itself, the location of the application site and its relationship to other, existing development adjoining it, and adjacent to it. That was not the kind of question to which the court should put forward an answer of its own. Nor would it readily interfere with the decision-maker’s own view: Woodv Secretary of State for Communities and Local Government[2015] EWCA Civ 195 [2015] PLSCS 251 followed.
(2) The planning officer had referred to the inspector’s decision in the earlier appeal, in his report and appended it. Yet in his assessment of the proposal on its planning merits, he said nothing about the inspector’s approach, plainly adopted a different approach, and reached a different conclusion. The principle of consistency went in this case to a matter of fact and planning judgment, on which detailed reasons would generally not be required, and the question was not whether any of the planning officer’s conclusions was irrational. However, the officer’s approach and conclusion were starkly at odds with the inspector’s on the critical point of whether the proposal was for “infill” development (or “limited infilling”) and thus, under national planning policy, not “inappropriate” development in the green belt. It was not entirely clear what approach, in principle, the planning officer adopted to that issue but it was clear that his approach to it and conclusion on it were different from the inspector’s. The need for reasons to be given to explain such inconsistency was not removed by the fact that the planning judgment involved was relatively straightforward. In adopting a different test from the inspector’s, the planning officer and committee were necessarily disagreeing with a critical aspect of the decision in the previous case. Some reasons were required to show that the relevant questions had been faced and resolved by the appellant in making its decision. None were given, either in the officer’s report, or in the minutes of the committee meeting or in the appellant’s decision notice itself. Accordingly, the appellant’s decision to grant planning permission was vitiated by that failure and it was plainly an error of law: North Wiltshire District Councilv Secretary of State for the Environment[1992] 3 PLR 113 followed.
(3) Inherent in that error of law there was substantial prejudice to the respondent as he was left without an explanation of the appellant’s approach and its reasons for differing from the previous decision. So too were other members of the public affected by the grant of planning permission. This was a case in which the interests of the respondent had been substantially prejudiced by a deficiency of reasons to indicate whether the decision-maker had had regard to a material consideration. The court could not, in those circumstances, withhold an order to quash the planning permission. To do so it would have to speculate on the outcome of a lawful consideration of the proposal in the light of the 2009 appeal decision.
Juan Lopez (instructed by Northumberland County Council Legal Services) appeared for the appellant; Annabel Graham Paul (instructed by Harrison Grant Solicitors) appeared for the respondent; the interested party did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read transcript: R (on the application of Tate) v Northumberland County Council
