Town and country planning – Planning permission – Local plan – First appellant local authority granting outline planning permission to second appellant for residential development – Respondent parish council applying for judicial review – High Court quashing planning permission – Appellants appealing – Whether first appellant misled by planning officers as to correct interpretation of neighbourhood plan – Appeals allowed
On 22 July 2019, the second appellant applied for outline planning permission for the development of up to 210 dwellings at Beyton Road, Thurston, Suffolk. The development was predominantly located within the administrative area of the first appellant local authority, with the exception of proposed highway improvements, which would be within West Suffolk District. The development site was outside the settlement boundary of Thurston, although it lay within the area of the parish.
On 29 January 2020, the first appellant’s planning committee considered the application in light of an extensive report by the planning officer, which recommended that planning permission be granted, subject to conditions and the satisfactory prior completion of an agreement under section 106 of the Town and Country Planning Act 1990.
The first appellant granted planning permission relying on the site’s draft allocation for development in the emerging local plan. The respondent parish council objected to the proposed development on grounds of it being outside the recently established settlement boundary for Thurston and because of Thurston’s lack of capacity to accommodate any more large-scale development in addition to that permitted in recent years.
The Thurston Neighbourhood Plan, “made” in 2019 following independent examination and a statutory referendum, provided expressly in Policy 1: Spatial Strategy that “new development in Thurston Parish shall be focused within the settlement boundary”.
On the respondent’s application for judicial review, the High Court quashed the planning permission: [2022] EWHC 352 (Admin). In their conjoined appeals, the appellants contended, amongst other things, that the judge had erred in law in his construction of policy 1 in the neighbourhood plan.
Held: The appeals were allowed.
(1) An officer’s report to committee was not to be read with undue rigour, but with reasonable benevolence, bearing in mind that it was addressed to an informed readership, a planning committee, with substantial background and local knowledge. The purpose of an officer’s report was to inform the members of relevant considerations relating to an application for permission. Part of a planning officer’s expert function was to make a judgment about how much information needed to be included in his or her report. It was necessary to read the passages criticised in an officer’s report in the context of the document as a whole. The question for the court would always be whether, on a fair reading of the report as a whole, the officer had materially misled the members on a matter bearing upon their decision, and the error had gone uncorrected before the decision was made: R (Mansell) v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314; [2017] PLSCS 174; [2019] PTSR 1452 and R (Ewans) v Mid Suffolk District Council [2021] EWHC 511 (Admin) considered.
(2) Section 38(6) of the Planning and Compulsory Purchase Act 2004 required the determination to be made in accordance with the development plan unless material considerations indicated otherwise. Under the statutory scheme, the policies of the plan operated to ensure consistency in decision-making. If the section 38(6) duty was to be performed properly, the decision-maker had to identify and understand the relevant policies, and establish whether or not the proposal accorded with the plan, read as a whole. A failure to comprehend the relevant policies was liable to be fatal to the decision. The court would always keep in mind that the creation of development plan policy by a local planning authority was not an end in itself, but a means to the end of coherent and reasonably predictable decision-making, in the public interest: Canterbury City Council v Secretary of State for Communities and Local Government [2019] EWCA Civ 669; [2019] PLSCS 74; [2019] PTSR 1714, Chichester District Council v Secretary of State for Housing, Communities and Local Government [2019] EWCA Civ 1640; [2020] 1 P&CR 9 and Wavendon Properties Ltd v Secretary of State for Housing, Communities and Local Government [2019] EWHC 1524 (Admin); [2019] PLSCS 108; [2019] PTSR 2077 considered.
(3) It was well established that, while the interpretation of a planning policy was a question of law for the court to determine, the application of a policy was entrusted to the relevant decision-maker, subject to review only on the ground of irrationality. The question whether proposed development was “in accordance with” a planning policy might raise both questions of interpretation of that policy and questions of its application. It was important to keep that distinction well in mind because it was only the interpretation of the policy which was a pure question of law for the court to determine. The present case concerned the proper application of policy 1 in the circumstances of the proposed development rather than its interpretation.
The planning officer’s 90-page report was thorough and wide-ranging. It correctly identified the elements of the statutory development plan and set out the terms of policy 1. However, there was nothing in the planning officer’s report which constituted an interpretation of policy 1 in the neighbourhood plan, let alone a misinterpretation. But it was clear from the conclusions in the report that the committee was advised that the proposed development conflicted with the housing settlement policies in the adopted local plan and for that reason it did not accord with the development plan taken as a whole. However, the report continued, there were other material considerations which directed that planning permission should nevertheless be granted. That was clearly a reference to the exercise which the committee had to perform under section 38(6) of the 2004 Act.
(4) The judge was wrong to conclude that there had been a material error in the advice given by officers to the committee. Ultimately, this case concerned the application of planning policy to the circumstances of this particular case on its planning merits. The committee weighed the benefits and disadvantages of the proposed development against the background that there was a conflict with the development plan. They were entitled to reach the conclusion which they did in accordance with the terms of section 38(6).
Tom Cosgrove KC and Ruchi Parekh (instructed by West Suffolk Shared Legal Services) appeared for the first appellant; Paul G Tucker KC and Kate Olley (instructed by Gowling WLG (UK) LLP) appeared for the second appellant; Meyric Lewis (instructed by Ashtons Legal) appeared for the respondent.
Eileen O’Grady, barrister
