R (on the application of Walsh) v Horsham District Council

Town and country planning – Planning permission – “Wholly exceptional reasons” – Claimant applying for judicial review of planning permission for conversion of grass football pitch to artificial surface – Defendant local authority accepting wholly exceptional reasons for loss or deterioration of veteran tree within paragraph 186(c) of National Planning Policy Framework – Whether defendant failing to give legally adequate reasons for decision – Application dismissed The claimant applied for judicial review of the grant of planning permission by the defendant local authority for the conversion of an existing grass football pitch to an artificial 3G surface, with new perimeter paths, fencing, floodlighting and goal storage area, at Horsham YMCA Football Club, Gorings Mead, Horsham, West Sussex. The claimant lived near the site and would be directly affected by the proposed development. He opposed the grant of permission. The site was bounded by mature trees and there was a veteran ash tree in the south-western corner. The base of that tree sat below the level of the existing grass football pitch within a trench. The original planning statement submitted by the interested party acknowledged that it was a veteran tree and the proposed development would lead to its loss, by virtue of works in its root protection area, to create a retaining structure. The defendant local authority had resolved to grant planning permission contrary to the planning officers’ recommendation that the interested party had failed to demonstrate “wholly exceptional reasons” for the “loss or deterioration” of a veteran tree, as required by paragraph 186(c) of the National Planning Policy Framework (December 2023). The claimant contended, amongst other things, that: (i) the defendant failed to give legally adequate reasons for finding that the test in paragraph 186(c) was met; and (ii) the defendant’s decision to grant the permission was irrational. Held: The application was dismissed. (1) There was no general common law duty to give reasons for a decision to grant planning permission. However, in the interests of openness and fairness, a formulated statement of reasons should be given, typically where permission had been granted in the face of substantial public opposition, and against the advice of planning officers, for projects which involved major departures from the development plan. Committee members were entitled to depart from their officers’ recommendations for good reason, but the reasons had to be capable of articulation and scrutiny. The reasons for a decision had to be intelligible and adequate and enable the reader to understand why that decision was made and what conclusions were reached on the principal important controversial issues, disclosing how any issue of law or fact was resolved. Reasons could be briefly stated, the degree of particularity required depending entirely on the nature of the issues for decision. A reasons challenge would only succeed if the party aggrieved could satisfy the court that they had genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision: R (CPRE Kent) v Dover District Council [2017] UKSC 79; [2018] EGLR 1 applied. It was common ground that the defendant was under a common law duty to give reasons for the refusal of permission, applying the principles in CPRE Kent and, despite their brevity, it had done so. (2) It was sufficiently clear from the reasons that, when members evaluated the factors in committee, they concluded that the proposed development demonstrated wholly exceptional reasons to justify the potential deterioration and/or loss of the veteran ash tree by reason of enabling the viability of a long-standing community facility and provision of significant new infrastructure to the benefit of the physical and mental health of the community. The committee’s reasoning, read together with the officers’ reports, was both adequate and intelligible.  In applying the policy test, the committee made an exercise of planning judgment, on which it differed from officers, as it was entitled to do. If it had been asked to give further reasons to explain why it differed from officers, it could have done no more than repeat its stated reasons, identify the factors in the reports, and confirm that, in its view, those factors amounted to “wholly exceptional reasons”. However, decision-makers were not required to give reasons for their reasons. Parliament had conferred the ultimate decision-making power on elected members, not local authority officers, and members might lawfully reach a different view to that of their officers: R (Tesco Stores Ltd) v Reigate and Banstead Borough Council [2024] EWHC 2327 (Admin) considered. R (Cross) v Cornwall Council [2021] EWHC 1323 (Admin); [2021] PLSCS 98 distinguished. (3) Paragraph 186(c) of the NPPF provided that development resulting in the loss or deterioration of irreplaceable habitats (such as ancient woodland and ancient or veteran trees) should be refused, unless there were wholly exceptional reasons and a suitable compensation strategy existed. Footnote 67 to paragraph 186(c) gave, as examples of “wholly exceptional reasons”, infrastructure projects (including nationally significant infrastructure projects, orders under the Transport and Works Act and hybrid bills), where the public benefit would clearly outweigh the loss or deterioration of habitat. But it did not form part of the policy test in paragraph 186(c). It merely provided illustrations of situations where “wholly exceptional reasons” might arise, by way of guidance. It did not set a standard to be met. Thus, there was no policy requirement that only or mainly “nationally significant infrastructure projects” could amount to “wholly exceptional reasons”. The claimant did not submit that the proposed development could not properly be considered when applying the policy test in paragraph 186(c). The term “infrastructure” meant the physical structures and systems required for a country or an organisation to operate. It was not limited to national structures and systems. Therefore, it was not necessary for the committee to justify its finding of “wholly exceptional reasons” as a departure from the illustrations in footnote 67. The committee made an exercise of judgment that the proposal was “significant new infrastructure” which would benefit the local community. Those benefits were described in detail in the officers’ reports and did not have to be restated by the committee in its reasons. (4) There was nothing in the evidence to suggest that members disagreed with or overlooked the officers’ advice. The conclusion that the proposals demonstrated wholly exceptional reasons for the loss or deterioration of the tree was within the range of reasonable responses open to the committee. The fact that others might have reached a different conclusion did not begin to show that the committee’s conclusion was not open to it. Ben Fullbrook (instructed by Richard Buxton Solicitors) appeared for the claimant; Clare Parry (instructed by Horsham District Council Legal Services Department) appeared for the defendant; The interested party did not appear and was not represented. Eileen O’Grady, barrister Click here to read a transcript of R (on the application of Walsh) v Horsham District Council