Town and country planning – Planning permission – Material consideration – Claimant applying for judicial review of defendants’ decision to grant planning permission for change of use from grazing to residential – Whether planning committee failing to have regard to planning status of surrounding gypsy sites – Application granted
The claimant applied for judicial review of the decision of the defendant local planning authority to grant to the interested party planning permission for the change of use from grazing to residential for one caravan and a touring caravan and one utility shed on land known as Blossom, Maplehurst Lane, Frittenden Road, Staplehurst, Kent. The interested party took no part in the proceedings.
The claimant contended, among other things, that the defendant’s planning committee had failed to have regard to the status in planning terms of the surrounding gypsy sites when considering the prevailing character of the area and so failed to have regard to a material consideration. Of the gypsy site to the north, only one had the benefit of planning permission and that was a personal permission. When an application was made for further development on that site, it had been refused by the defendants. If the existing character of the area was to be used to justify a finding that the application would not have a detrimental impact, it was material to consider that the existing development was either unlawful or granted subject to a personal condition and therefore temporary. With the unlawful sites, it had never been concluded that their development was acceptable and with the temporary site, there was a real possibility that it would revert to agriculture. So a permanent planning permission was being granted on the basis of circumstances that were inherently temporary. If the members of the committee had been told of the status of those other sites, they might have granted a temporary planning permission in order to see what happened on those sites.
Held: The application was granted.
(1) In the absence of contrary evidence, it was a reasonable inference that members of the planning committee follow the reasoning of the officer’s report, particularly where a recommendation was accepted. The officer’s report had to be read as a whole and fairly, without being subjected to the kind of examination which might be applied to the interpretation of a statute or a contract. An application for judicial review based on criticisms of the planning officer’s report would not normally begin to merit consideration unless the overall effect of the report significantly misled he committee about material matters which thereafter were left uncorrected at the meeting of the planning committee before the relevant decision was taken. A decision might be quashed if there was a real possibility that consideration of the matter would have made a difference to the decision: R (on the application of Watson) v Richmond upon Thames London Borough Council [2013] EWCA Civ 513; [2013] PLSCS 105 and R (on the application of Nicholson) v Allerdale Borough Council [2015] EWHC 2510 (Admin) ; [2105] PLSCS 295 applied.
(2) The complaint in this case was that the officer’s report failed to mention factual matters which were material to the members’ decision and that if they had been mentioned there was a real possibility that their decision might have been different. It was clear that the planning officer had relied on the “gypsy and traveller sites fronting the track to the north” as “mak[ing] up the character of the area”. The prevailing character of the area was said to be defined by those developments. That was one of the two matters relied upon as resulting in it being difficult to make a sustainable case of further material harm to the character of the area from the development for which planning permission was being sought. It was material to that assessment that the sites to the north were either in unlawful use and therefore susceptible to enforcement action or had the benefit of only temporary permission. The character of the area could therefore change if the defendants took action or if the temporary permission expired. Therefore, relevant information had not been put before the members which might have caused them to reach a different decision. The defendants did not suggest that the members knew of the planning status of those other sites from their local knowledge or from having been members of the committee on previous occasions and there was no evidence to that effect.
(3) While the site to the north with temporary planning permission could continue lawfully in use by the children of the family, the committee members were not informed of the temporary nature of the permission and so were not in a position to form a judgment as to how the planning status of the site affected its impact on the character of the area. The possibility of enforcement action being taken was a matter that the members should have been able to consider for themselves if they had the information before them as to the unlawful nature of some of the existing developments. The applications for retrospective planning permission for the unlawful developments had been submitted some years ago. There was no officer’s report in relation to any of them and so not even a professional officer’s view had been formed as to whether those applications should be approved. Accordingly, it was not possible to conclude that planning permission was likely to be granted. In any event, that was a matter that the committee members should have been able to consider but could not because they did not have the relevant information before them in the officer’s report.
(4) In all the circumstances, the committee members were significantly misled about material matters by the report in that they were invited to make a decision to grant planning permission in reliance on matters that were potentially temporary in nature that went to a key issue in the decision, namely, the extent of harm to the character of the area by the development for which planning permission was being sought.
Andrew Parkinson (instructed by Richard Buxton Environmental and Public Law Solicitors) appeared for the claimant; Mark Beard (instructed by Sharpe Pritchard LLP) appeared for the defendants.
Eileen O’Grady, barrister
Click here to download the transcript of R (on the application of XY) v Maidstone Borough Council
