England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT, QUEEN'S BENCH DIVISION
HIS HONOUR JUDGE THORNTON QC
CO13562012

		Royal Courts of Justice Strand, London, WC2A 2LL
		25th October 2013

Lord Justice Jackson:

1. This judgment is in seven parts, namely:

Part 1. Introduction,

Part 2. The facts,

Part 3. The judicial review proceedings,

Part 4. The Appeal to the Court of Appeal,

Part 5. Did the Planning Committee misunderstand policy H20?

Part 6. Was the Planning Committee presented with sufficient and correct data concerning the local need for affordable housing?

Part 7. Conclusion.

Part 1. Introduction
2. This is an appeal against a decision of Judge Anthony Thornton QC, whereby he rejected a judicial review challenge to the grant of planning permission for a residential development on the outskirts of a village in Cornwall. The principal issues in the appeal are (i) whether the Planning Committee misunderstood one of the provisions of a draft local plan; (ii) whether the judge should have relied upon evidence which contradicted the official records; (iii) whether the Planning Committee received sufficient and correct information concerning the local need for affordable housing.
3. The second of those three issues is of wider importance, because it impacts upon the way judicial review proceedings generally are conducted.
4. The claimant in the judicial review proceedings and the appellant before this court is Lanner Parish Council ("LPC"). The defendant in the judicial review proceedings and respondent in this court is the Cornwall Council ("the Council").
5. The applicant for planning permission was Coastline Housing Ltd ("Coastline"). Coastline is named as an interested party in the proceedings, but it has not been separately represented either in the court below or in this court. That is a sensible economy. There is no point in two parties with identical interests being separately represented.
6. The body which took the relevant planning decision is the West Sub-Area Planning Committee of the Council. I shall refer to this body as "the Planning Committee" or "the Committee".
7. Lanner is a large village in the west of Cornwall, close to Redruth. Lanner was formerly a mining village. It is situated in what used to be the area of Kerrier District Council, before that body was abolished on 1^st April 2009.
8. In 2004 Kerrier District Council produced the draft Kerrier District Local Plan. Policy H14 in that document provides:

"Policy H14: Housing in the Countryside

New housing development (with the exception of those developments listed within A-C below) will not be permitted outside towns and villages where:

…

The exceptions for which guidance is provided by other policies of the plan are:

(a) small schemes of affordable housing for local need on rural exceptions sites immediately adjoining suitable villages;

…"

9. Policy H20 in the draft Kerrier District Local Plan 2004 provides:

"Policy H20: Affordable housing on rural exceptions sites to meet the needs of the local community

The development of affordable housing on small exceptions sites in rural areas will be permitted where:

(i) it is within, or immediately adjoining, the development boundary of a village, as defined by the settlement strategy;

(ii) there is evidence of a local need that would not otherwise be met for affordable housing to serve the village and parish which would be met by the number and size of dwellings proposed, whose individual internal floorspace area should not be significantly more than 100 sq m (1,080 sq ft), excluding garaging, depending upon the evidence of the needs of the local community;

(iii) It is for no more than about 12 dwellings in the larger villages and about 6 dwellings in the smaller villages, depending upon the evidence of the needs of the local community for the survey period;

…"

10. I shall refer to these two policies in the draft Kerrier District Local Plan 2004 as "policy H14" and "policy H20".
11. The draft Kerrier District Local Plan 2004 never proceeded to the stage of a public inquiry and it was never adopted. Kerrier District Council was abolished before this could happen. Despite that circumstance the policies contained in the draft Kerrier District Local Plan 2004 were frequently referred to in connection with planning applications. It is common ground that policies H14 and H20 were both material considerations in the present case.
12. In Cornwall (as in other counties) there are many people who are in need of affordable housing. When persons apply to the Council for social housing, their names are recorded on a register known as the "Homechoice Register". The areas of Cornwall with which each applicant has a connection are also recorded on the register.
13. Applicants on the Homechoice Register are assessed. They are then assigned to one of the following five bands:

"Band "A" Urgent Housing Need

Band "B" High Housing Need

Band "C" Medium Housing Need

Band "D" Low Housing Need

Band "E" Adequately Housed".

14. One piece of secondary legislation is relevant to the present appeal. This is the Town and Country Planning (Development Management Procedure) (England) Order 2010 ("the 2010 Order"). The 2010 Order came into force on 1^st October 2010. It has recently been amended, but those amendments do not affect the present appeal.
15. Article 31 of the 2010 Order requires a planning authority to include in any notice of planning permission a summary of its reasons for the grant of such permission.
16. After these introductory remarks, I must now turn to the facts.
Part 2. The facts
17. On the 3^rd August 2009 Coastline applied to the Council for planning permission to construct 25 affordable dwellings at Tresavean Estate in Lanner. Coastline proposed to build these houses on a greenfield site adjoining the boundary of the village on the south west side.
18. As is often the case with planning applications, there were strong feelings on both sides. Mr Mark Kaczmarek, a member of the Council who lives in Lanner, strongly supported the proposed development. Mr Kaczmarek's electoral division is St Day and Lanner. Lanner Parish Council strongly opposed the proposed development. LPC duly submitted a statement of its objections to the Council.
19. One of LPC's grounds for objecting to the application was that 25 dwellings constituted too large a development. On a proper application of policy H20 no more than about 12 dwellings should be built at Tresavean Estate.
20. Another objection raised by LPC was that a need for 25 affordable dwellings had not been established. LPC relied upon a local needs housing survey which it had carried out in May 2010. LPC had sent a questionnaire to each of the households in the parish. The response rate was 21%. Of those who completed questionnaires, 30 people expressed a wish to be considered for local needs housing. Out of these 30 people, 11 were judged to meet local needs housing eligibility criteria.
21. Having collated all the relevant evidence and submissions, the Council's planning officer prepared his report for the Planning Committee. The officer recommended that Coastline's application be approved. The first main paragraph of his report reads as follows:

"Principle of development

The proposal constitutes residential development of a Greenfield site adjoining the development boundary of Lanner village. It proposes 100% affordable housing and is considered as an 'exception site' in accordance with policy H20 of the Draft Kerrier District Local Plan 2004. The Affordable Housing Officer has confirmed that the Cornwall Homechoice Register has 51 applicants with a local connection to Lanner Parish. The development accords with policies 8, 9 and 10 of the Cornwall Structure Plan, policies H14 and H20 of the Draft Kerrier District Local Plan 2004 and Government advice contained within Planning Policy Statement 3."

22. In relation to need, the officer duly summarised the local needs housing survey carried out by LPC and a separate survey carried out by Coastline. He also placed emphasis on the contents of the Council's Homechoice Register. On three occasions the officer stated that the Register had 51 applicants with a local connection to Lanner. He did not, however, give a breakdown of the 51 applicants as between bands A, B, C, D and E.
23. In paragraph 29 of his report the officer discussed the effect of policy H20. He wrote:

"The proposal constitutes residential development of a Greenfield site adjoining the development boundary of Lanner village. It proposes 100% affordable housing and can therefore be considered as an 'exception site' in accordance with policy H20 of the Draft Kerrier District Local Plan 2004. Lanner is a larger village and policy H20 normally allows for about 12 affordable dwellings. However the additional 13 dwellings are considered justified with regard to the current needs of the community as verified by the Affordable Housing Officer."

24. After that passage the officer went on to discuss the effect of relevant policies in the Cornwall Structure Plan 2004. He also drew attention to the advice contained in Planning Policy Statement 3, published by the Department for Communities and Local Government. In paragraph 35 the officer repeated his assertion that the proposed development would accord with policy H20.
25. The Planning Committee duly met on 1^st February 2011 to consider Coastline's application. The planning officer outlined the application. He took the members through his report and an addendum. A number of objectors addressed the meeting, including Mr Ashley Wood, the chairman of LPC. Mr Kaczmarek, a county councillor who was not a member of the Planning Committee, spoke in support of the proposed development.
26. There then followed a detailed discussion, which is summarised in the minutes. The minutes include the following passage:

"In response to a question regarding local housing need, the Affordable Housing Team Leader – West Cornwall Planning Delivery Team advised that current statistics from the Homechoice Register indicated that there were 53 people registered with a verified local connection with Lanner, 29 of which were in the highest bands of housing need."

The phrase "the highest bands of housing need" was a reference to bands A to D.

27. At the end of the discussion a vote was taken. The Committee voted in favour of the application by a majority of 9 to 4, with one abstention. In accordance with the Planning Committee's decision, on 7^th November 2011 the Council granted planning permission for the construction of 25 affordable dwellings at Tresavean Estate, Lanner.
28. As required by Article 31 of the 2010 Order, the schedule attached to the grant of planning permission stated the reasons for approval of the application. The first paragraph of those reasons reads as follows:

"The proposal constitutes residential development of a Greenfield site adjoining the development boundary of Lanner village. It proposes 100% affordable housing and can therefore be considered as an 'exception site' in accordance with policy H20 of the Draft Kerrier District Local Plan 2004. The Affordable Housing Officer has confirmed that the Cornwall Homechoice Register has 51 applicants with a local connection to Lanner parish. The development accords with policies 8, 9 and 10 of the Cornwall Structure Plan 2004, policies H14 and H20 of the Draft Local Kerrier District Local Plan 2004 and Government advice contained within Planning Policy Statement 3."

29. LPC was aggrieved by the grant of a planning permission. Accordingly it commenced proceedings for judicial review.
Part 3. The judicial review proceedings
30. By a claim form issued in the Administrative Court on 1^st February 2012 LPC applied for an order to quash the grant of planning permission to Coastline for the construction of 25 affordable homes at Lanner.
31. LPC challenged the lawfulness of the grant of planning permission on two grounds. First, the Planning Committee misunderstood policy H20. Contrary to the officer's report and the Council's stated reasons, Coastline's application did not "accord with" policy H20. It conflicted with that policy. Secondly, the Planning Committee was not presented with sufficient or correct data concerning the local need for affordable housing. In particular, the Committee was not told how many persons on the Homechoice Register fell within each of the five bands.
32. The Council contested LPC's claim on a number of grounds. One limb of the Council's defence was that the Planning Committee did not misunderstand policy H20. The Committee members were well aware and were advised that policy H20 would only permit a development of about 12 houses at Tresavean Estate.
33. The Council served evidence in support of its defence, including a statement by Mr Kaczmarek. Mr Kaczmarek said that two members of the Planning Committee, namely Pam Lyne (vice-chairman) and Mike Clayton, had played a significant role in preparing the draft Kerrier District Local Plan. Policy H20 of that draft local plan was frequently referred to at planning meetings. All members of the Committee were familiar with its provisions. Furthermore at the meeting on 1^st February 2011 both the planning officer and Mr Wood stated that the proposed development exceeded the number of dwellings ("about 12") permitted by policy H20.
34. LPC served a witness statement of Mr Wood responding to the Council's evidence. Mr Wood did not dispute what Mr Kaczmarek said about the familiarity of Planning Committee members with policy H20. It is not clear whether Mr Wood positively admitted this or whether he simply did not know. He did, however, dispute that there was any reference at the meeting to the number of dwellings permitted by policy H20.
35. The action came on for hearing before His Honour Judge Anthony Thornton QC, sitting as a judge of the Administrative Court, on 12^th October 2012. Mr Phillip Coppel QC represented LPC and Mr Sancho Brett represented the Council.
36. Although the witness statements revealed potentially significant disputes of fact, neither party applied for leave to call oral evidence or to cross-examine. That is understandable. Judicial review proceedings are normally dealt with on the basis of written evidence. Rather more surprisingly, neither party invited the judge to disregard the witness statements and to treat the minutes and other official records as an accurate account of what transpired.
37. At the end of the hearing the judge reserved his judgment. There was then a delay of three and a half months before the judgment was ready for hand down. During that period significant events occurred. On 5^th November 2012 Coastline made a fresh planning application to construct 25 affordable dwellings at Tresavean Estate in Lanner. The Planning Committee listed this matter to be discussed in February 2013.
38. On 21^st January 2013 the judge handed down his reserved judgment in the judicial review proceedings. See Lanner Parish Council v The Cornwall Council [2013] EWHC 37 (Admin). The judge rejected both of LPC's grounds of claim.
39. In relation to the first ground, the judge accepted the evidence Mr Kaczmarek. He made the following finding of fact in paragraph 36 of his judgment:

"the Committee was informed that, was aware that and took its decision in the light of knowing that policy H20 in its terms prohibited permission in this case because the proposed development greatly exceeded the maximum number of dwellings allowed by that policy."

The judge went on to hold that the Planning Committee exercised its discretion to approve the planning application despite non-compliance with policy H20. That was, said the judge, a lawful exercise of discretion. Policy H20 was a material consideration, but not binding upon the Committee.

40. In relation to LPC's second ground of claim, the judge concluded that the Planning Committee received sufficient evidence concerning local housing need. The Committee placed greater weight on the Homechoice Register than the various survey results submitted. These were matters of planning judgment for the Committee, with which the court would not interfere.
41. In the result, therefore, the judge dismissed LPC's claim and gave judgment for the Council.
42. LPC was aggrieved by the dismissal of its claim. Accordingly LPC appealed to the Court of Appeal.
Part 4. The Appeal to the Court of Appeal
43. On 18^th February 2013 LPC filed an appellant's notice appealing against the decision of Judge Thornton. LPC contended that it should have succeeded on both grounds of its claim. Accordingly the judge had erred in rejecting those grounds.
44. On the following day, 19^th February 2013, the Council granted a fresh planning permission to Coastline for the construction of 25 affordable dwellings at Tresavean Estate in Lanner. There is no dispute about the validity of this planning permission. The Planning Committee which approved Coastline's second application had been fully and properly informed about the effect of policy H20 and the extent of local need for affordable housing.
45. Accordingly Coastline embarked upon construction work. It is estimated that the 25 new dwellings will be completed by February 2014.
46. On 7^th June 2013 the Council served a respondent's notice. The Council not only relied upon the reasons given in the judge's judgment, but also put forward a new ground for dismissing the appeal. This was that, in the light of the new planning permission, the appeal was academic and could be of no practical benefit.
47. The appeal came on for hearing on 11^th October 2013. Mr Philip Coppel QC appeared for LPC, as he had in the court below. Mr James Findlay QC appeared for the Council, leading Mr Sancho Brett who had represented the Council below.
48. At the start of the hearing Lord Justice Rimer raised the question whether this appeal should proceed at all. Mr Findlay submitted that it should not. The development at Tresavean Estate is now going ahead on the basis of an unchallenged planning permission. It is not the practice of the Court of Appeal to deal with appeals on academic questions. Mr Coppel, on the other hand, submitted that the appeal should go ahead. He said that the issues concerning policy H20 remain important in a number of planning applications; also the judgment of Judge Thornton is being widely relied upon as a precedent.
49. Having considered those submissions, we decided to hear the appeal. We saw the force of Mr Coppel's arguments. Also it is now eight months since the second planning permission was granted and four months since the respondent's notice was served. It would be harsh to tell LPC at this late stage, when it has made full preparations for the hearing, that we will not allow the appeal to proceed.
50. Having dealt with those preliminary matters, I must now turn to the first issue in the appeal, namely whether the Planning Committee misunderstood policy H20.
Part 5. Did the Planning Committee misunderstand policy H20?
51. As explained in Part 1 above, the draft Kerrier District Local Plan 2004 never reached the stage of a public inquiry and was never adopted. Therefore it was not a development plan to which the Council was obliged to have regard under section 70 (2) of the Town and Country Planning Act 1990.
52. Nevertheless it is common ground that the draft local plan and in particular policies H14 and H20 constituted material considerations. These policies were frequently referred to in connection with planning applications for rural locations. Indeed in the present case the relevance of these two policies is emphasised in the first paragraph of the officer's report and in the first paragraph of the stated reasons for granting planning permission.
53. LPC's case on the first issue is that both the officer's report and the stated reasons for the Planning Committee's decision mis-state the effect of policy H20. It is repeatedly stated that the planning application accords with policy H20. That is incorrect. Policy H20 provides for a development of "no more than about 12 dwellings". Coastline's application was for 25 dwellings. Therefore it was in conflict with policy H20.
54. Mr Coppel asserts that the Planning Committee fell into error. The Committee treated policy H20 as a factor supporting Coastline's application. That was wrong. In carrying out the balancing exercise the Committee put this factor on the wrong side of the scales. The Committee should have treated policy H20 as a material consideration which pointed towards refusal of planning permission, not as a material consideration in favour of granting permission.
55. In my view that argument is sound. Policy H20 was a material consideration. The weight which the Committee assigned to that consideration was a matter for the Committee, not for the court. All that the law requires is that the Committee should understand policy H20 and take it into account. Both the officer's report and the stated reasons for the decision show that the Committee fell into error. The Committee treated policy H20 as pointing in favour of granting permission, when in fact it did the contrary.
56. It is true that paragraph 29 of the officer's report refers to about 12 dwellings being "normally" allowed, but that paragraph misrepresents the way in which policy H20 operates. Furthermore a few lines later the planning officer again asserts that the proposed development accords with policy H20. In my view, the Council cannot rely upon paragraph 29 of the officer's report as retrieving the situation and curing the error which occurred in the planning approval process.
57. At the hearing before the judge (in addition to advancing other arguments which are no longer material) Mr Brett relied upon the evidence of Mr Kaczmarek to demonstrate that there was no misunderstanding of policy H20. The judge accepted that evidence. In paragraph 36 of the judgment he made a finding that the Committee was informed that policy H20 prohibited the grant of permission and the Committee made its decision on that basis.
58. Mr Coppel challenges paragraph 36 of the judgment. He submits that the judge should have based his decision on the official records of the Planning Committee's deliberations and decision. He should have disregarded Mr Kaczmarek's evidence.
59. In support of this argument Mr Coppel relies upon the Court of Appeal's decision in R v Westminster City Council, ex parte Ermakov [1996] 2 All ER 302. In that case the applicant came to the UK from Greece and applied to the respondent for housing under the homelessness provisions of the Housing Act 1985. The respondent refused the application, saying that the applicant was intentionally homeless. The respondent gave reasons for its decision, as required by section 64 of the Housing Act 1985. The applicant challenged that decision by judicial review. The respondent filed evidence setting out different reasons for its decision from those originally given. The deputy judge accepted that evidence and dismissed the claim. The Court of Appeal reversed his decision.
60. The Court of Appeal held that since the respondent was required to give reasons at the time of its decision and those reasons were deficient, the decision should be quashed. Hutchison LJ gave the leading judgment, with which Nourse and Thorpe LJJ agreed. At 315 h-j Hutchison LJ stated:

"The court can and, in appropriate cases, should admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should, consistently with Steyn LJ's observations in Ex p Graham, be very cautious about doing so. I have in mind cases where, for example, an error has been made in transcription or expression, or a word or words inadvertently omitted, or where the language used may be in some way lacking clarity. These examples are not intended to be exhaustive, but rather to reflect my view that the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction. Certainly there seems to me to be no warrant for receiving and relying on as validating the decision evidence – as in this case – which indicates that the real reasons were wholly different from the stated reasons."

61. In my view that principle is applicable to the present case. The Council was required by article 31 of the 2010 Order to give reasons for its decision. The planning permission with the reasons attached is a public document, which anyone is entitled to inspect. The first paragraph of those reasons states that the proposed development accords with policy H20. That paragraph reveals a misunderstanding of policy H20. The Council should not have been permitted to adduce evidence contradicting its own stated reasons.
62. If Ermakov had been cited to the judge, in my view he should and would have disregarded the relevant parts of Mr Kaczmarek's evidence. In those circumstances the judge would not have made the crucial finding of fact, namely that the Committee proceeded on the basis that policy H20 prohibited the proposed development.
63. There is a point of principle here, which is of some importance. Judicial review proceedings involve challenges to the actions and decisions of public bodies. Such cases generally proceed on the basis of the primary documents and records, supplemented by any necessary written evidence (for example, to establish facts relevant to a human rights claim). Oral evidence is only occasionally taken in judicial review proceedings under Part 54 of the Civil Procedure Rules: see, for example, R (Al-Sweady) v Secretary of State for Defence [2009] EWHC 2387 (Admin) at [15]-[29] per Scott Baker LJ, delivering the judgment of the court. This approach is efficacious and leads to a saving of costs. In judicial review proceedings under Part 54 the court should be cautious before entering into disputed issues of fact, whose proper resolution may require oral evidence.
64. Save in exceptional circumstances, a public authority should not be permitted to adduce evidence which directly contradicts its own official records of what it decided and how its decisions were reached. In the present case the officer's report, the minutes of the Planning Committee meeting and the stated reasons for the grant of planning permission all indicate a misunderstanding of policy H20. These are official documents upon which members of the public are entitled to rely. Mr Findlay's submission that this is not a "reasons" case like Ermakov misses the point. The Council should not have been permitted to rely upon evidence which contradicted those official documents. Alternatively, the judge should not have accepted such evidence in preference to the Council's own official records.
65. In my view, if LPC's case had been argued before the judge in the same way as it has been argued before us, LPC would or at least should have succeeded on its first ground of challenge. The judge would have disregarded paragraphs 5 and 6 of Mr Kaczmarek's witness statement. He would then have held that the Planning Committee reached its decision on the basis of a misunderstanding of policy H20. Accordingly he would have quashed the grant of planning permission.
66. Despite that circumstance, I believe that we should dismiss LPC's appeal on the first ground. There are two reasons for this conclusion. First, the planning permission dated 7^th November 2011 is no longer operative. The remedy of a quashing order is discretionary. The court will not make a quashing order which serves no useful purpose. Secondly, Ermakov was not cited to the judge. Mr Coppel did not address to the judge the arguments based on Ermakov which I have summarised above.
67. Accordingly, even though I regard the grant of planning permission dated 7^th November 2011 as flawed, nevertheless I would dismiss LPC's appeal on the first ground.
68. I must now turn to the second ground of appeal, which concerned the evidence of local need for affordable housing.
Part 6. Was the Planning Committee presented with sufficient and correct data concerning the local need for affordable housing?
69. On the second issue, as on the first issue, LPC's case is essentially a simple one. LPC notes that the Planning Committee attached particular weight to the number of people on the Homechoice Register. This can be seen from the officer's report, the minutes of the meeting and the published reasons for the Committee's decision.
70. In those circumstances, says Mr Coppel, the Committee ought to have been informed what was the breakdown of persons on the Homechoice Register as between bands A, B, C, D and E. This was important information which the Committee should have received in order to assess the extent of local housing needs.
71. There were 51 people on the Homechoice Register with a connection to Lanner when the officer wrote his report. By the date of the meeting the number had increased to 53. As recorded in the minutes, the Committee asked for more information. The affordable housing team leader replied to the effect that 29 applicants were in bands A-D and the remainder were in band E. In other words 24 applicants were adequately housed. The other 29 applicants had varying degrees of housing need ranging between "urgent" and "low".
72. If the Committee had wanted a breakdown of the 29 applicants in need, they could and would have asked for it. The affordable housing team leader would then have explained how many applicants fell within each of the bands A to D. However, the Committee members did not ask for that further information and they did not receive it.
73. With the benefit of hindsight, I readily agree with Mr Coppel that it would have been better if a full breakdown of the persons on the Homechoice Register had been provided to the Planning Committee. Nevertheless, the fact remains that the Committee was given the essential information, namely the total number of applicants in bands A to D.
74. In my view the information given to the Committee about the persons on the Homechoice Register was both accurate and sufficient. Furthermore it is not disputed that the officer accurately presented to the Committee the results of the local housing needs surveys conducted by Coastline and LPC.
75. In the result therefore, I agree with the judge's decision on the second issue. I would dismiss LPC's second ground of appeal.
Part 7. Conclusion
76. For the reasons set out in Part 5 above I conclude that the planning permission granted on 7^th November 2011 was flawed and originally was liable to be quashed. Despite that conclusion, for the reasons set out in Parts 5 and 6 above, I nevertheless would reject both of LPC's grounds of appeal and would uphold the decision of the judge.
77. If my Lords agree, this appeal will be dismissed.

Lord Justice Lewison:

78. I agree.

Lord Justice Rimer:

79. I also agree.