Planning permission — Two identical applications — First application refused — Second application granted — Absence of reasons for grant — Whether duty to provide reasons when granting planning permission
Two identical
applications for planning permission for the erection of two dwellinghouses
were made by H. The first application, made in September 1994, was refused by
the council in January 1995 against their officer’s advice. Following the
making of an appeal to the Secretary of State for the Environment against that
decision, arrangements were made for a public local inquiry to be held in
November 1995. In August 1995 H made the second, identical application, for
planning permission which was granted. No reasons were given for the council’s
change of mind. The applicants appealed against the decision of the court below
refusing their application to quash the grant of permission on the grounds
that, inter alia, there was a duty to give reasons for the grant of
planning permission when an earlier identical application had been refused.
Under the
statute a local planning authority need not give reasons for granting
permission even when the grant is made against the advice of their planning
advisers. There is no general duty to give reasons for the grant of planning
permission. Although there could be a situation in which an obligation to give
reasons arises, no such situation arose here. It is not necessary to consider
the merits and demerits of collective reasoning upon grants of planning permission
which constitute, subject to judicial review, final decisions: see p60C.
to in the judgment
North
Wiltshire District Council v Secretary of State
for the Environment (1992) 65 P&CR 137; [1992] 3 PLR 113; [1992] JPL
955, CA
R v City of London Corporation, ex parte Matson [1997]
1 WLR 765; (1996) 94 LGR 443; 8 Admin LR 49
R v East Hertfordshire District Council, ex parte Beckman unreported
June 26 1997
R v Higher Education Funding Council, ex parte Institute of Dental
Surgery [1994] 1 WLR 242; [1994] 1 All ER 651
R v Poole Borough Council, ex parte Beebee [1991] 2 PLR
27; [1991] JPL 643
Judicial
review
This was an
appeal brought by John Chaplin, Gloria Bridget Chaplin, Matthew Glynn
Burkinshaw Collings, Amanda Jane Pandora Collings, Albert Edward Gladwin, Wendy
Angela Gladwin, John Nicholas
quash a grant of planning permission by the first respondents, Aylesbury Vale
District Council.
Singh and Karen Steyn (instructed by Kingsford Stacey) appeared for the
appellants, John Chaplin, Gloria Bridget Chaplin, Matthew Glynn Burkinshaw
Collings, Amanda Jane Pandora Collings, Albert Edward Gladwin, Wendy Angela
Gladwin, John Nicholas Hamilton and Rita Margaret Hamilton.
Lieven (instructed by the solicitor to Aylesbury Vale District Council)
appeared for the first respondent council.
respondent, Harold Price, did not appear and was not represented.
following judgments were delivered.
PILL LJ: This is an appeal against the decision of Keene J on July 5 1996
by which he refused the application of Mr John Chaplin and others to quash a
planning permission granted by Aylesbury Vale District Council (‘the council’)
for the erection of two dwellinghouses at Barracks Farm, Nash, Buckinghamshire.
The underlying planning issue is whether the site is or is not within the
existing built-up area of the village of Nash.
The judge
described the site and its location in this way:
Barracks Farm
lies on the south side of [Thornborough Road] and on the west side of the
village of Nash. Also on the south side of the road and running from the
eastern boundary of Barracks Farm in an easterly direction is continuous
residential development. Immediately adjoining that eastern boundary is
Homefield, a residential property where [two of the] applicants live. On the
other side of the road from Barracks Farm are two detached dwellings but then a
sizeable undeveloped area to the east, ie in the direction of the village.
Following an
application for planning permission dated September 26 1994, the planning
officer reported to the development control subcommittee of the council (who
had, it appears, delegated powers):
The rear
(southern) boundary of the site is well defined and it is considered,
therefore, that the site does lie within the built framework of the village and
its development would comprise infilling of the existing frontage. The proposal
would not involve an extension of the built development of the village into
open countryside and therefore it would comply with the relevant policy of the
Rural Areas Local Plan ie RH 6.
Policy RH 6
provides:
Within the
existing built-up area of settlements … residential development may be
permitted in the form of:
(a) infilling of small gaps in an otherwise
built-up frontage; or
(b) development or redevelopment of other
small-scale areas of land.
Schemes for
such development will be considered in the light of all other proposals in the
Plan, including in particular RCD 2.
At a meeting
on January 5 1995 the subcommittee decided to refuse permission giving as their
reasons:
The proposal
would constitute the development of a site which lies outside the built-up area
of the village. The site with the open land opposite and the farmhouse and barn
conversions to the west contribute to the rural character of this part of
Thornborough Road. The development proposed would be out of keeping with this
character and would be contrary to the policies contained in the approved
County Structure Plan and the Rural Areas Local Plan (Adoption Draft).
It is common
ground that for present purposes rural areas local plan policy RH 6 is the only
development plan policy which requires consideration.
On March 22
1995 the applicant for planning permission, Mr Harold Price, appealed to the
Secretary of State under section 78 of the Town and Country Planning Act 1990
(‘the 1990 Act’) against the refusal and arrangements were made for a public
local inquiry to be held on November 15 1995. On June 29 1995 the planning
department submitted a further report to the subcommittee stating:
This report
draws attention to an appeal which is to be considered at a Public Inquiry
later this year. The Sub-Committee refused permission against officers advice
and the question of how the Council’s case should be presented, needs to be
considered … It is important to consider how evidence should be given at this
Inquiry. Members might find it helpful to nominate a Panel to visit the site
and to report back to the next meeting of the Sub-Committee.
The
subcommittee accepted that recommendation and in July 1995 the chairman and six
members carried out a site inspection. They were accompanied by council
officers. At their next meeting on July 20 1995 the subcommittee resolved:
That as a
result of the views expressed by Members who had visited the site and the
Officers’ advice the applicant be invited to submit an application seeking
planning permission on a without prejudice basis.
On August 1
1995, Mr Price submitted a further application which was in all material
respects identical to the one for which permission had been refused on January
5. The subcommittee met again on August 31 1995 and the members had a further
report from officers referring to the site visit and to the fact that members
had ‘considered at great length the relationship of the site to adjacent
development and to the land on the opposite side of the road’. The report again
recommended the grant of planning permission. Following that meeting permission
was granted, subject to conditions, on September 5 1995. No reasons were given
for the decision or for the fact that it reversed the January decision.
Both decisions
were made by a majority. The chairman of the
changed her mind between the meetings having voted against permission in
January and in favour in August. Mrs Roff states:
4. It was my
view, and I believe that of a number of other members who attended the site
visit, that the Officer’s opinion that the site did lie within the village was
correct. This was because it lay in a built up part of the settlement along a
developed frontage.
6. I have no
doubt that the change of mind by the Sub-Committee was because of the different
view that was formed about the question of whether the site was or was not in
the village, after the site visit. Members were of course aware that Mr Price
was appealing the refusal of planning permission, but the important factor in
mind was that, in the light of the site visit, the earlier decision was not
correct. Given this conclusion it would obviously have been very difficult to
defend the appeal.
The problem of
what evidence should be called at an appeal hearing by a council, a majority of
whose members have disagreed with the recommendations of their planning
officer, is not of course a new one.
The
applicants’ submissions must be considered in the context of a statutory
framework under which an applicant for planning permission has a statutory
right of appeal against the refusal of a local planning authority to grant
permission or to grant it subject to conditions: section 78 of the 1990 Act.
There is no equivalent statutory right in a person aggrieved by the grant of a
planning permission to appeal against the grant. Further, by virtue of article
22(1) of the General Development Procedure Order 1995, a local planning
authority are required to give their reasons for refusing an application or
imposing conditions on the grant of the permission. There is no equivalent
statutory duty to give reasons for a grant of permission.
Mr Rabinder
Singh, for the appellants, first submits that the grounds for refusal of
permission include two reasons, first, that the site was outside the built-up
area of the village and, second, that the development would harm the character
of the area. He goes on to submit that, whether in substance there is one
reason or two, there was a duty to give reasons for the grant of permission
when, earlier the same year, an identical application had been refused. It was
important that those concerned should know the reason for the change of mind.
It was also important for public confidence, especially in the absence of a
statutory appeal procedure. The obligation to give reasons focused the minds of
the decision makers. By reference to R v Higher Education Funding
Council, ex parte Institute of Dental Surgery [1994] 1 WLR 242, R v City
of London Corporation, ex parte Matson (1996) 8 Admin LR 49 and R v East
Hertfordshire District Council, ex parte Beckman unreported June 26 1997,
Mr Singh submits that there is a developing common law duty to give reasons for
administrative decisions. Dealing with the objection that those who voted for
the second application had made individual decisions, Mr Singh submits that it
is logically and practically possible for a group of people to agree upon a
form of words which expresses why a different view had
the statement of Swinton Thomas LJ in Matson (not a planning case), at
p71, that, ‘I do not believe that it would be unduly difficult or arduous for
the Aldermen to give a collective reason for their decision’.
The appellants
also rely upon the principle that a planning inspector who proposes to take a
view different from that of an earlier inspector in respect of the same appeal
site has to take the earlier decision into account and to explain why a
different view is being taken. In North Wiltshire District Council v Secretary
of State for the Environment [1992] JPL 955, Mann LJ stated, at p959:
An inspector
had to always exercise his own judgment. He was therefore free upon
consideration to disagree with the judgment of another but before doing so he
ought to have regard to the importance of consistency and to give his reasons
for departure from the previous decision.
It is further
submitted that the contents of Mrs Roff’s affidavit should be disregarded:
first, because it dealt with only one of the earlier grounds for refusal;
second, because it was not contemporaneous with the decision; third, because
Mrs Roff could not speak for the subcommittee in a collegiate sense.
Mr Singh
relies upon the need for consistency in administrative decisions. He submits
that it is unlawful to make apparently inconsistent decisions without giving a
good explanation. Mr Singh describes the second decision as irrational but,
upon analysis, this was another way of submitting that reasons for the grant
ought to have been given. He accepts that opposing views could reasonably be
held upon the central planning issue. It is the attack upon the absence of
reasons for the grant which is the essential basis of Mr Singh’s submissions.
It is also
submitted that the refusal of permission on the first occasion created a legitimate
expectation that no permission would be granted upon an identical application
without the objectors having the opportunity to address an inspector at a
public local inquiry. The appellants could not be deprived of that opportunity
in the absence of reasons for the grant of permission. A legitimate expectation
is said also to arise from a letter of February 12 1991 sent by the council to
two of the appellants, Mr and Mrs Collings, whose property adjoins Barracks
Farm. That submission has no merit, in my judgment. The letter merely states
the substance of policy RH 6.
I referred at
the beginning of this judgment to the underlying planning issue. Those who have
to make planning decisions in relation to proposed residential developments in
rural areas very frequently have to decide whether a site is within ‘the
existing built-up area’ or ‘the village envelope’ or whatever expression is
used in the relevant development plan. Whether the site falls within or without
is essentially a matter of planning judgment. At or near the border line, those
with planning expertise will often disagree about a particular site and, with
or without the benefit of expert advice, members of local planning authorities
will
different people, acting in good faith, will form opposing views as did members
of the council on both relevant occasions. Some believed the site to be within
the built-up area and others believed it to be without.
I am not
prepared, in the present statutory context, to find the existence of a general
duty to give reasons for the grant of planning permission. Such an obligation
is conspicuously absent from the statute. This contrasts with the obligation
upon a planning inspector to make a statement of reasons for a decision he is
empowered to make following a planning appeal: 1990 Act, Schedule 6, para 8. I
would not extend that obligation by analogy to cover the situation where no
duty is imposed in the statute. Moreover, just as the obligation to give
reasons for a refusal is compatible with the right of appeal in that a decision
whether to appeal may be based upon the perceived weight of reasons for
refusal, so the absence of a right of appeal against a grant is compatible with
the absence of an obligation to give reasons for the grant. A local planning
authority need not under the statute give reasons for granting permission even
when the grant is made against the advice of their planning advisers, the
converse of the situation upon the January 1995 refusal. On Mr Singh’s terms,
that would appear to be a worse situation than the one he now complains of, but
parliament must have been aware, when enacting the present scheme without
imposing the obligation, of the possibility of such grants. Schiemann J, in R
v Poole Borough Council, ex parte Beebee [1991] 2 PLR 27, having
considered the statutory scheme, stated obiter, at p31G, that ‘all this
may well point to a desire on parliament’s part not to have the implementation
of policy decisions held up by legal challenge on the basis of defective
reasoning’. Be that as it may, to quote Schiemann J’s comment upon his own
statement, I can find no general obligation upon local planning authorities to
give reasons for the grant of planning permission.
There remains
the question whether in this particular case the later decision was unlawful in
the absence of an explanation for the decision being different from that
reached in January. Dealing with Mr Singh’s first point, the construction of
the reasons for refusing the first application, the ‘full reasons’ for the
refusal of permission are, in my judgment, essentially a single reason, namely,
that the site is not within the existing built-up area. The statement begins
and ends with what in substance are references to policy RH 6. That is based on
protecting the rural character of sites outside the built-up area. The
reference to rural character is no more than a restatement of the opinion that
the site is outside the built-up area. There was but a single planning issue at
all material times, the issue stated above.
Like Keene J,
I am prepared to accept the possibility that there could be a situation in
which an obligation to give reasons for a grant of permission arises, but I am
far from satisfied that the present decision can be impugned for lack of
reasons. Though the answer may not have been easy, the question posed for the
consideration of members of the subcommittee was clear. There was a single
issue. Their planning advisers were consistent in making a judgment in favour
of the grant of permission.
advice of their planning advisers. Before they considered the second
application the members had the benefit of a site visit and further advice from
their planning advisers. Better informed as they were, members were entitled to
make a different judgment upon the issue, as one of them undoubtedly did and
others probably did. That was a course they were entitled to take. There is no
evidence of any lack of good faith on the part of members or of their taking
irrelevant considerations into account. They were also entitled to take into
account the difficulty they would inevitably face in the circumstances in opposing
the appeal against the first refusal. Whoever gave evidence at the inquiry
would be cross-examined on the basis of the report of his own planning expert.
As Keene J put it, the prospect of the forthcoming appeal, and how to deal with
it, focused members’ minds upon the merits of the subsisting application.
There was a
good and obvious reason for the second decision and no obligation to spell it
out arose by reason of the previous refusal. The majority had obviously come to
the conclusion that the site was within the built-up area of Nash.
My conclusion
does not depend on the contents of the affidavit of Mrs Roff though it is not
of course inconsistent with her evidence. I do not find it necessary to
consider in this case the extent to which reasons expressed at a later date may
be used to justify a decision. Nor is it necessary to consider the merits and
demerits of collective reasoning upon grants of planning permission which
constitute, subject to judicial review, final decisions. The difficulties may
not be insurmountable, but the changing constitution of planning committees
could itself present a problem in situations such as the present.
The
appellants’ other submissions appear to me to be different ways of expressing
the ‘reasons’ challenge. This was, I think, accepted by Mr Singh when he
stressed that the merit of his argument did not depend upon the legal label
placed upon it. I do, however, add that I can find no legitimate expectation to
go to inquiry based upon the refusal of the first application. An obligation in
present circumstances to allow a refusal of permission to stand so that third
parties can have the opportunity to address a public inquiry cannot, in my
judgment, be read into the statutory scheme. It follows from my finding that the
council subcommittee were entitled to grant permission upon the second
application but that they were not obliged, in the interest of objectors, to
permit the first application to go to appeal.
For the above
reasons, I would dismiss this appeal.
WALLER LJ: I agree.
NOURSE LJ: I also agree.
Appeal
dismissed with costs.
