The court casts doubt on the validity of general advice issued by the chief planner
Article 31 of the Town and Country Planning (Development Management Procedure) (England) Order 2010, in its amended form, obliges a local planning authority (“LPA”) in two sets of circumstances to include in a planning application decision notice a statement explaining how, in dealing with the application, the LPA has “worked with the applicant in a positive and proactive manner based on seeking solutions to problems arising in relation to dealing with a planning application”. What might be described as a “similar sentiment” is to be found in paragraphs 186-187 of the NPPF, in a section entitled “Decision-taking”.
One of the issues for the court in R (on the application of Timmins) v Gedling Borough Council [2014] EWHC 654 (Admin) was the scope and extent of the duty imposed by Article 31, and what the consequences of failing to comply with it might be. (The decision of the LPA to grant planning permission for a crematorium and cemetery on green belt land was under challenge.) In accordance with general advice given earlier by the chief planner at DCLG, the LPA had stated in the decision notice “the borough council has worked positively and proactively with the applicant in accordance with paragraphs 186 to 187 of the [NPPF]”.
Article 31 of the Town and Country Planning (Development Management Procedure) (England) Order 2010, in its amended form, obliges a local planning authority (“LPA”) in two sets of circumstances to include in a planning application decision notice a statement explaining how, in dealing with the application, the LPA has “worked with the applicant in a positive and proactive manner based on seeking solutions to problems arising in relation to dealing with a planning application”. What might be described as a “similar sentiment” is to be found in paragraphs 186-187 of the NPPF, in a section entitled “Decision-taking”.
One of the issues for the court in R (on the application of Timmins) v Gedling Borough Council [2014] EWHC 654 (Admin) was the scope and extent of the duty imposed by Article 31, and what the consequences of failing to comply with it might be. (The decision of the LPA to grant planning permission for a crematorium and cemetery on green belt land was under challenge.) In accordance with general advice given earlier by the chief planner at DCLG, the LPA had stated in the decision notice “the borough council has worked positively and proactively with the applicant in accordance with paragraphs 186 to 187 of the [NPPF]”.
The court first expressed its disagreement with the advice issued by the chief planner, namely that the Article 31 obligation could be met minimally by a “simple” statement confirming that the LPA had implemented the relevant requirements in the NPPF. The judge pointed out that Article 31 specifically obliged a LPA to state explicitly “how” it had worked with the applicant. The statement in the present case did not, and could not, satisfy that obligation. Accordingly, there had been a breach of Article 31.
In terms of the consequences of that breach, the defendant argued that it was difficult to envisage any circumstance in which a breach of the Article 31 obligation would provide a foundation for quashing a planning permission, since the very grant itself indicated that a positive approach had been taken by the LPA. Furthermore, the claimant could not point to any substantial prejudice caused by the incomplete statement.
The court decided, for a number of reasons, that the proper course of action was to grant declaratory relief only, and that it would be disproportionate to quash the decision purely and simply on the basis of quite a technical breach of the law.
John Martin is a planning law consultant
