ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION (PLANNING COURT)
THE HONOURABLE MR JUSTICE JAY
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE PATTEN
LORD JUSTICE SALES
| Mrs Karen Louise Oakley
|- and -
|South Cambridgeshire District Council
|- and -
|Mr Len Satchell
Jack Parker (instructed by NP LAW) for the Respondent
Hearing Date: 26 January 2017
Crown Copyright ©
Lord Justice Elias:
"87. As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.
88. When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. 'Very special circumstances' will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.
89. A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Exceptions to this are… :
? provision of appropriate facilities for outdoor sport, outdoor recreation and for cemeteries, as long as it preserves the openness of the Green Belt and does not conflict with the purposes of including land within it;"
I shall call this exception the "appropriate facilities" exception.
The Planning Officer's report
"Paragraph 88 of the NPPF goes on to state that, when considering any application, planning authorities should ensure that substantial weight is given to any harm to the Green Belt and that very special circumstances will not exist unless the potential harm to the Green Belt by reason of inappropriateness and any other harm is clearly outweighed by other considerations. It is therefore next necessary to consider whether the development results in any further harm in addition to that caused by inappropriateness." (Emphasis in original.)
"… these benefits, whether taken individually or collectively, would not clearly outweigh the harm to the Green Belt caused by reason of inappropriateness as well as the additional harm identified in this report." (para.134).
"1. The site lies outside the defined village framework for Sawston, and within the countryside and Cambridge Green Belt. The proposed development, by virtue of the nature and range of proposed uses, together with the scale of the facility and its consequent failure to preserve the openness of the Green Belt, would constitute inappropriate development in the Green Belt, as defined within the National Planning Policy Framework 2012 ('the NPPF 20-12'), and would therefore be contrary to Policy GB/1 of the South Cambridgeshire Local Development Framework 2007 ('the LDF').
2. Notwithstanding the harm by reason of inappropriateness, the development would result in additional harm to the rural character of the area and to the openness of the Green Belt. Consequently, the proposal would be contrary to Policy DP/3 (m) of the adopted Local Development Framework 2007, which states that development will not be permitted if it would have an unacceptable adverse impact on the countryside and landscape character.
3. Notwithstanding the harm by reason of inappropriateness, the site is in a location that would result in unsustainable forms of travel for the proposed use. Consequently, the proposal would be contrary to Policies DP/1 and TR/1 of the adopted Local Development Framework 2007, which state that development will only be permitted if it would be consistent with the principles of sustainable development by, in part, minimising the need to travel and reducing car dependency.
4. Insufficient very special circumstances, including the lack of a sufficiently robust and detailed consideration of alternative sites, have been put forward to demonstrate why the harm, by reason of inappropriateness in the Green Belt and other harm identified above, is clearly outweighed by these considerations. The application therefore fails to satisfy the requirements of paragraph 88 of the NPPF 2012."
The decision of the planning committee
"A delegation report or committee report, setting out the basis of this decision, is available on the Council website."
One of the arguments of the appellant is that this reference created a legitimate expectation that a report would be provided on the website setting out the planning committee's reasons. It is convenient to deal with that argument here. The judge rejected it in summary terms saying that any hypothetical reader would understand the reference to the report to be a reference to the officer's report which "is available on the Council's website" and not to some future report not yet in existence. I entirely agree. It is impossible in my view to create a legitimate expectation that reasons would be given from this comment. In my judgment this argument is wholly without merit.
The judgment below
"I think it important that there should be an effective means of detecting the kind of error which would entitle the court to intervene, and in practice I regard it as necessary for this purpose that the reasoning of the Home Secretary should be disclosed."
The grounds of appeal
"In examining the reasons given by a local planning authority for a decision, it is a reasonable inference that, in the absence of contrary evidence, they accepted the reasoning of an officer's report, at all events where they follow the officer's recommendation: R (Fabre) v Mendip DC (2000) 80 P&CR 500, 511; R (Zurich Assurance Ltd) v North Lincolnshire Council  EWCA Civ. 3078 at ."
Reasons: the general position
"There is certainly a strong argument for the view that what was once seen as exceptions to a rule may now be becoming examples of the norm, and the cases where reasons are not required may be taking on the appearance of exceptions."
Reasons in planning cases
"52. Over the years the public was first enabled and then encouraged to participate in the decision-making process. The fact that, having participated, the public was not entitled to be told what the local planning authority's reasons were, if planning permission was granted, was increasingly perceived as a justifiable source of grievance, which undermined confidence in the planning system. Thus the requirement to give summary reasons for a grant of planning permission should be seen as a further recognition of the right of the public to be involved in the planning process. While the requirement to give "full reasons" for a refusal of planning permission, or for the imposition of conditions, will principally be for the benefit of the applicant for planning permission, who will be better able to assess the prospects of an appeal to the Secretary of State, the requirement to give summary reasons for the grant of planning permission will principally be for the benefit of interested members of the public. The successful applicant for planning permission will not usually be unduly concerned to know the reasons why the local planning authority decided to grant him planning permission.
53. Parliament decided that this extension of the public's rights under the Planning Code was necessary even though in many cases it could reasonably be inferred that the members would have granted planning permission because they agreed with the planning officer's report (see Fabre above). Parliament could have, but did not, limit the obligation to give summary reasons to those cases where the councillors did not accept their officers' recommendation."
"When officers recommend the grant of planning permission there is no reason why their reports should not similarly contain recommended summary grounds for so doing. Very often the conclusions in an officer's report will in effect be a summary of the grounds for granting planning permission. The members will be able to adopt or amend the officer's summary grounds, but the requirement to set out summary grounds in the decision notice will ensure that the members decide in public session why they wish to grant planning permission."
The grounds of appeal: the wider argument
"Though the answer may not have been easy, the question posed for the consideration of members of the Sub-Committee was clear. There was a single issue. Their planning advisers were consistent in making a judgment in favour of the grant of permission. Upon the first application for permission, a majority of members rejected the 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 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".
The grounds of appeal: the narrower argument
The Aarhus Convention
Is the reasoning clear?
What relief should be granted?
Lord Justice Patten:
Lord Justice Sales: