Town and country planning – Planning permission – Material consideration – Defendant local authority granting planning permission for residential development within green belt – Claimants applying for judicial review – Whether planning officer’s report significantly misleading – Whether defendant giving adequate and sufficient reasons for decision – Application dismissed
The claimants applied for judicial review of the decision of the defendant local authority to grant outline planning permission to the interested parties for a residential development of up to 150 dwellings at land to the rear of 112-156b Harpenden Road, St Albans, Hertfordshire, known as Sewell Park. The site was within the metropolitan green belt and previous applications for smaller residential developments on the same site had been refused.
The first claimant was an action group formed by local residents. The second claimant was a committee member and the third claimant was its treasurer. There had been more than 270 objections to the proposal, in particular to the harm to the green belt, loss of landscape and open space, environmental impacts, increased traffic congestion and pressure on schools, doctors etc. Previous applications at the site had been rejected, and nothing had changed since those decisions were made. Development of sites for housing had to take place via the local plan process.
The claimants argued that: (i) the advice given in the planning officer’s report to members of the planning committee significantly misled them as to the basis upon which it was justifiable to depart from previous decisions refusing planning permission at the site; (ii) the defendant had given inadequate and insufficient reasons for its decision to grant permission, and why it departed from the previous decisions; and (iii) the officer’s report failed to provide members with accurate evidence to enable them to evaluate the impacts of the proposed development, so that the planning committee acted unlawfully by taking into account irrelevant considerations and failed to take into account relevant considerations.
Held: The application was dismissed.
(1) Previous decisions relating to the same or similar development in the same or similar location were material considerations in determining an application for planning permission. They had to be taken into account and the decision-maker had to give reasons for departing from them. It was a matter of judgment for the decision-maker whether to follow or to depart from a previous decision, and so it might only be challenged on public law grounds: North Wiltshire District Council v Secretary of State for the Environment [1992] 3 PLR 113 applied.
It was common ground that the officer’s report had to be read fairly and as a whole, bearing in mind that it was written for members with local knowledge. At the outset, the officer set out the essential details of the previous planning applications and refusal decisions. She correctly directed herself in accordance with the North Wiltshire test and was entitled, in the exercise of her planning judgment, to advise that the housing position had worsened since the previous decisions were made.
Further, the officer’s failure to remind members of the smaller size of the site and development in a previous appeal was not seriously misleading in a material way which could have made a difference to the committee’s decision: R (on the application of Mansell) v Tonbridge & Malling Borough Council [2017] EWCA Civ 1314; [2017] PLSCS 174; [2019] PTSR 1452 applied.
From the claimants’ perspective, the controversial aspect of the officer’s advice was her judgment that, because of the green corridor, and the area of green space in the north eastern corner of the proposed development, the harm to the green belt, in terms of unrestricted sprawl and encroachment, would only be “low to moderate”, instead of “significant” as previously assessed. However, that fell squarely within the scope of the officer’s planning judgment and it could not be challenged in the court.
(2) While there was no statutory duty to give reasons for a decision to grant planning permission, the Supreme Court in CPRE Kent v Dover District Council [2017] UKSC 79, [2018] EGLR 1 had determined that, in some circumstances, local planning authorities would be under a common law duty to give reasons for a grant of planning permission. Typically, they would be cases where permission had been granted in the face of substantial public opposition and against the advice of officers, for projects which involved major departures from the development plan, or from other policies of recognised importance.
In the present case, it was common ground that the defendant was required to give reasons for its departure from earlier decisions for the same or similar development at the same or similar site. However, this case did not fall within the class of cases identified in CPRE Kent where members had to give reasons for their decision because here the members accepted the recommendation of the planning officer to grant planning permission. The reasons for the defendant’s decision were intelligible, sufficient and adequate, and met the required standard.
(3) The officer’s report relied upon material in support of the application for planning permission which was based on an earlier proposal for only 132 dwellings, whereas the proposal before the committee was “up to 150” dwellings. The claimants contended that that was misleading in a number of respects, and failed to provide members with accurate evidence to enable them to evaluate the impacts of the proposed development.
However, it was the task of the officer to decide how much information to provide to the committee. It was not irrational for the officer to conclude that the information provided in support of the application enabled a judgment to be reached on the acceptability of a 150-dwelling scheme. This was an outline application with all matters reserved except for access. Therefore, the precise form of the development would be determined at reserved matters stage. At this stage, the committee only had to be satisfied that an acceptable 150-dwelling scheme could come forward on the site, and they clearly were so satisfied. The officer’s judgment that the information provided with the application allowed a full assessment of the impacts of up to 150 dwellings to be considered could not be successfully challenged.
Jenny Wigley QC (instructed by Richard Buxton Solicitors) appeared for the claimants; Matthew Dale-Harris (instructed by St Albans City and District Council) appeared for the defendant; Paul Stinchcombe QC (instructed by Sherrards Solicitors LLP) appeared for the first interested party; the second interested party did not appear and was not represented.
Eileen O’Grady, barrister