ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MR JUSTICE ELVIN)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIX
LORD JUSTICE SULLIVAN
| The Queen on the Application of Macrae
|- and -
County of Herefordshire District Council
|- and -
John Aaron Heath
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Mr Roger Giles (instructed by Legal Services) appeared on behalf of the Respondents.
The Interested Party appeared in person.
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Lord Justice Sullivan:
"to grant planning permission would be fundamentally contrary to policy H7, H8 and H10 of the whole Herefordshire Unitary Development Plan ('the UDP') and the principles of sustainable residential development in isolated rural locations set out in Planning Policy Statement 7: Sustainable Development in Rural Areas."
"The decision to grant planning permission has been taken having regard to the policies and proposals in the Herefordshire Unitary Development Plan 2007 set out below, and to all relevant material considerations including Supplementary Planning Guidance:
S2 - Development Requirements
S6 - Transport
DR3 - Movement
H7 - Housing in the Countryside Outside Settlements
H8 - Agricultural and Forestry Dwellings and Dwellings Associated with Rural Businesses
H13 - Sustainable Residential Design.
In reaching this decision the local planning authority was mindful of the particular circumstances of the case, namely the extent to which the development complied with policy and the way in which local issues of the housing needs of the applicant were addressed.
This informative is only intended as a summary of the reasons for grant of planning permission. For further detail on the decision: please see the application report by contacting [contact details were provided]."
"i) Whether the claim has been brought promptly within CPR 54.5, and whether the requirement of promptness remains, notwithstanding recent decisions, principally in the context of EU law;
ii) Whether the grant of permission is unlawful, having regard to section 38(6) of the Planning Compulsory Purchase Act 2004, or whether it is otherwise irrational, having regard to the advice of officers and to PPS7 (grounds 1 to 3);
iii) Whether the reasons for the grant of planning permission were inadequate (grounds 4 and 5); and
iv) Whether the time conditions imposed on the planning permission were inconsistent and thus unlawful (ground 6)."
i) the claim had not been brought promptly and the requirement of promptness remained;
ii) the grant of planning permission was neither unlawful nor irrational;
iii) the reasons for granting planning permission were inadequate but members' views could be ascertained from the minutes of their debates;
iv) condition 1 was unlawful, but it could be severed and quashed without affecting the validity of the remainder of the planning permission, and in any event this point had become academic because by the time the matter came before the judge in September 2011 the reserved matters had been approved and the development had been commenced so the time limits had been complied in any event.
i) that the application should be refused on the ground of lack of promptness (see paragraph 76 of the judgment); and
ii) despite the fact that the respondent's summary reasons for granting planning permission did not comply with Article 22(1)(b) of the then applicable Town and Country Planning (General Development Procedure) Order 1995 "there were other matters in the context of the decision-making which provided a basis for understanding members' views" (see paragraph 111 of the judgment)
were plainly wrong.
As will be seen, the two issues, promptness and the adequacy of the summary reasons, are interlinked.
"This is not a case where a potential claimant has been left in the dark about what happened, or what views members had expressed, what issues had arisen or what the final decision might have been…"
"However, that issue had been raised by the Claimant in June, according to his own evidence, and he had already been told correctly that it meant the various officers' reports to Committee of which both he and his legal advisers were already aware."
The judge had earlier said in paragraph 45 of his judgment:
"The Claimant says he made a call to the Council "soon after" the grant of permission to ask what was meant by the "application report" in the reasons, and was told that it referred to the various committee reports."
"I and my lawyers were puzzled by the reference to the report in the decision notice. Soon after I was aware of the decision notice I made an inquiry by telephone to the development control manager, Mr A Wilmott. His reply that it referred to 'various committee reports' did not leave me with any clearer understanding as to why that oblique reference was included in the consent notice. This is why we queried the point in the pre-action protocol letter. Obviously it was necessary for a clarification of this point before bringing the claim because this goes to the underlying basis of the claim, namely the lack of reasons for the committee's decision. If it had turned out that there were other documents apart from the officers' reports which purported to set out the committee's reasons, then we would need to consider those before deciding whether to proceed with the claim further."
"The exception to that is the reserved matters application which was made and approved following the grant of permission, and before he [the interested party] was aware of the letter before claim, since it was only received by the Council on the day that the approval was issued."
"…there were other matters in the context of the decision-making which provided a basis for understanding members' views, and the summary reasons come at the end of a long process, which here includes the debates which were publicly recorded and minuted…"
(See paragraph 111 of the judgment.)
"The new requirement to give summary reasons for the grant of permission will be particularly valuable in cases where members have not accepted officers' advice, where the officer has felt unable to make a recommendation, where the officer's report fails to take account of a material consideration, but that omission is said to have been remedied by the members during the course of their discussions, or where an irrelevant factor has been relied upon by some members during the course of their discussions and it is important to ascertain whether it was one of the Committee's reasons for granting planning permission. In such cases -- and I emphasize that these are merely examples -- there would have to be very powerful reasons for not quashing a decision notice which did not include the local planning authority's summary reasons for granting planning permission. To allow extrinsic post hoc evidence as to what the local planning authority's reasons were in such cases would perpetuate the very problems that Parliament intended the substituted article 22(1) to address."
Lord Justice Rix:
Lord Justice Pill:
"There is no excuse for the sloppy approach to reasons adopted here"
He stated at paragraph 110:
"…the reasons themselves for the decision notice simply fail to give the summary of the main reasons for granting permission."
Those findings are not challenged by the respondent.
"…it appears to me that that question had already been accurately answered soon after the grant of permission in response to the Claimant's telephone request."
Order: Appeal allowed