QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT AT LEEDS
The Court House
1 Oxford Row
Leeds LS1 3BG
B e f o r e :
Sitting as a Deputy High Court Judge
| THE QUEEN
on the application of
|- and –
|WAKEFIELD METROPOLITAN DISTRICT COUNCIL
MRS JACKIE AVISON
Robert C Smith, counsel, for the Interested Party
The Defendant did not appear.
Hearing dates: 16 August 2013
Crown Copyright ©
Mr Stephen Morris QC:
"Change of use of land from agricultural field to 20 pitch caravan and camping site, including residential use of land for managers mobile home, construction of a shed, improvements to vehicular access, provision of hard standing, dustbin/recycling area (part retrospective)" ....
The Legal and Policy Framework
Planning permission and reasons
(1) The duty to give reasons
"(1) When the local planning authority gives notice of a decision or determination on an application for planning permission or for approval of reserved matters -
(a) where planning permission is granted, the notice shall-
(i) include a summary of their reasons for the grant of permission;
(ii) include a summary of the policies and proposals in the development plan which are relevant to the decision to grant permission; and
(iii) where the permission is granted subject to conditions, state clearly and precisely their full reasons for each condition imposed, specifying all policies and proposals in the development plan which are relevant to the decision;..."
By contrast, Article 31(1)(b) provided that, where planning permission is refused, then the notice should "state clearly and precisely their full reasons for the refusal". (These statutory provisions have since been amended twice).
(1) Only summary reasons are required for the grant of permission; this is in stark contrast to the requirement for full reasons where permission is refused: see Ling §47.
(2) Such summary reasons do not present a full account of the local planning authority's decision making process; rather they are a summary of the outcome of that process: Siraj, §14.
(3) Summary reasons are not to be equated with fuller reasons required in a Secretary of State's decision letter: Siraj, §14.
(4) When considering whether summary reasons are adequate, it is necessary to have regard to the surrounding circumstances of the case in question: Siraj §15.
(5) Where members of the local planning authority follow the recommendation of a planning officer to grant permission, then a relatively brief summary of reasons may well be sufficient; on the other hand, where the members grant permission contrary to the advice of a planning officer to refuse, a fuller summary of reasons may well be necessary or appropriate. Siraj §§15 and 16, and Ling §50.
(6) In the latter case, the reason why such a fuller summary may be necessary is as stated by Sullivan LJ in Siraj §15 as follows:"a member of the public with an interest in challenging the lawfulness of planning permission will not necessarily be able to ascertain from the officer's report whether, in granting planning permission, the members correctly interpreted the local policies and took all relevant matters into account and disregarded irrelevant matters"
(7) Where members grant permission contrary to an officer's recommendation, the reasons should contain a summary explanation of the reasons for the grant of permission: Ling §48.
(8) Further, in such a case, the reasons should also contain a summary explanation of the reasons why members disagree with the reasoning in the officer's report which led to that recommendation. In my judgment, this is implicit in §§16 and 17 of Siraj, where Sullivan LJ considered that a relatively brief summary is sufficient, where there is no indication of disagreement with the reasoning in the officer's report. The implication is that where there is disagreement, the fuller summary reasons should include reasons for that disagreement. Further, in the Cherkley Campaign case, supra, Haddon-Cave J accepted (at §45) the proposition that, in such a case, there must be a rational and discernable basis for members to reject the officers' advice. Haddon-Cave J went on (at §185) to criticise the absence, in that case, of any explanation for the disagreement with the planning officer.
(9) Article 31 does not require a summary of the reasons for rejecting objections to the grant of permission: Ling, §48. "Objections" here, in my judgment, refer to third party objections made in the course of the planning application process, and not the planning officer's reasons for recommending refusal.
(10) A summary of reasons does not require a summary of reasons for reasons: Siraj §24 and Ling §49.
(2) Consequences of failure to give reasons
"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."
He held that the judge was wrong to hold that the reasons could be ascertained from the minutes of the meeting.
"Since the judge's decision the house had been built and it is now occupied by the interested party, his wife and two small children; a third child will soon be added to their family. Since there has been no challenge to the judge's conclusion that the grant of planning permission was not unlawful ... or otherwise irrational ... it is in my view quite inconceivable that if we were now to quash the planning permission the respondent on redetermination would refuse to grant a retrospective planning permission and would think it expedient to commence enforcement notice proceedings to secure removal of the house. In these circumstances I accept Mr Giles' submission that an order quashing the planning permission would be a disproportionate remedy. ..." (emphasis added)
Then, at §31, Sullivan LJ decided that an order that the council provide a summary of its reasons would not be appropriate, given the lapse of time. He concluded that the appropriate remedy was a declaration that the summary reasons did not comply with the statutory requirement and that, in the "somewhat unusual circumstances", this was sufficient vindication of the appellant's position.
"Terse as they are, the summary reasons given for the grant are also lawful. Elaborate reasons are not required. Brevity is usually a virtue, so long as the essential rationale of the decision is apparent. Here it is."
He pointed out that the council members plainly agreed with the officer's report, and that report was itself sufficiently detailed.
"If I had found the summary reasons in the decision notice fell short of what was required I would have held that this did not cause the claimant or anyone else substantial prejudice. The reasons why planning permission was granted in this case may readily be seen in the officers' report, which sets them out at considerable length. In these circumstances, it could not be said that anybody has been prejudiced by a deficiency in the reasons stated in the County Council's decision notice. The remedy then, rather than an order to quash the planning permission, would have been mandatory relief requiring the reasons to be made good...." (emphasis added)
(1) The normal remedy for failure to provide adequate reasons is to quash the underlying substantive decision. Such a remedy serves the dual purpose of encouraging rigorous decision making and avoiding the risks associated with "after the event" reconstruction of reasons.
(2) Alternative remedies include an order for a statement of the reasons or, merely, a declaration that the authority breached its statutory duty to provide summary reasons.
(3) Quashing might be refused where it is clear that, upon reconsideration, the substantive decision would be the same.
(4) The relevant prejudice to the applicant for relief is the inability to understand whether there may be grounds to challenge the substantive decision.
(5) Prejudice to the beneficiary of the decision may be a relevant factor in the exercise of discretion on remedy.
Relevant Planning Policy
Local Development plan - Wakefield Core Strategy
Green Belt and the NPPF: "very special circumstances"
"should take account of the different roles and character of different areas, promoting the vitality of our main urban areas, protecting the Green Belts around them, recognising the intrinsic character and beauty of the countryside and supporting thriving rural communities within it"
"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. [the paragraph then sets out exceptions to this]
90. Certain other forms of development are also not inappropriate in Green Belt ... [the paragraph then enumerates the "other forms"]."
These paragraphs of the NPPF replaced, without material difference, Green Belt policy set out in the Government's Planning Policy Guidance Note 2: Green Belts ("PPG 2"), at paragraphs 3.1 and 3.2.
Case law on Green Belt, inappropriate development and "very special circumstances"
"Given that inappropriate development is by definition harmful, the proper approach [is] whether the harm by reason of inappropriateness and the further harm, albeit limited, caused to the openness and purpose of the Green Belt was clearly outweighed by the [countervailing benefit arising from the development] so as to amount to very special circumstances justifying an exception to the Green Belt policy"
Thus, in considering whether to allow development in the Green Belt, the decision maker must consider, first, the "definitional" harm arising from the inappropriate development as well as such further harm to the Green Belt as is identified as being caused by the development in that case, and then secondly consider countervailing benefits said to be served by the development; and then consider whether those benefits clearly outweigh the harm so as to amount to very special circumstances. Secondly, in order to qualify as "very special", circumstances do not have to be other than "commonplace" i.e. they do not have to be rarely occurring. Thirdly, the test is not one of whether the harm to the Green Belt (definitional or specific) is "significant or unacceptable", either of itself or following the balancing exercise.
Remedies: Partial quashing
"A successfully impugned measure (enactment, rule or decision) may be held not to be unlawful in its entirety. It may be possible for the measure to be overturned or declared unlawful as to the offending parts, with the remainder of it upheld and subsisting"
"In holding a condition to be invalid, the court has no power to mutilate the authority's decision by removing the condition and allowing the permission to stand (Pyx Granite .... per Hodson LJ) unless the condition is severable from the permission. The test of severability is to ask whether the condition goes to the root of the permission, or whether it deals with some ulterior, collateral or trivial matter: see e.g. Kingsway Investment (Kent) Ltd v Kent CC  A.C. 72 HL; Hall & Co Ltd v Shoreham UDC  1 WLR 240 ... "
The paragraph goes on to state, somewhat tentatively:
"There would appear to be no power to set aside a part of a planning permission: R (on the application of Guiney) v Greenwich LBC  EWHC 2012 (Admin)."
The Site and the parties
The previous planning application
The instant planning application
"Change of use from agricultural field to 20 pitch caravan and camping site including managers' mobile home (part retrospective). Resubmission of Application Number 12/0466FUL"
This time the application was not only for a change of use to allow a residential manager, but also for planning permission for a 20 pitch caravanning/camping site, which would be open to all members of the public. I understand that the application was "in part retrospective", because by that time some aspects of the proposed development were in place or had been constructed.
The Design, Access and Planning Statement
The Planning Officer's Report
"It is considered that the harm to the Green Belt caused by the proposed camping/caravanning site would include visual impact of the associated infrastructure within the land and the effect on the appearance of the land due to fluctuating numbers of caravans/tents and associated vehicles/cars parked at the site.
The harm to the Green Belt caused by the proposed residential use of land includes visual impact of the provision of necessary infrastructure to serve the occupation of the site and permanent visual impact of the proposed mobile home together with associated cars/vehicles."
"Consideration of very special circumstances - caravan/camping site
The applicant's case can be summarised as follows:
The proposal would assist in achieving diversification of the farm business
The scheme would benefit the local economy and encourage tourism in the local area;
There is an unmet need for caravan and camping provision in the district
Officers consider that the scheme would be in line with the aspirations of the district to encourage local business and it would benefit the tourist economy by adding to the offer for any visitors to the area. The scheme would also aid diversification of the local agricultural business and would help to generate additional income in the local economy,
Having considered the above benefits of the scheme in the context of the Green Belt policy it is concluded that there are very special circumstances and outweigh the harm by reason of inappropriateness and visual harm of the development as identified above.
Given the above it is concluded that the proposed change of use of land to a caravan/camping site and associated infrastructure would not be contrary to the guidance of NPPF and policy SC1 of the Core Strategy
It is however recommended that the use of the site takes place only for 10 months within any one year to prevent a permanent residential use of any of the plots to be established and to retain the character as short stay caravan/camping site."
"Consideration of very special circumstances - residential use of land associated with the caravan/camping site
The applicant's case can be summarised as follows:
The proposal would secure diversification of the farm business and also benefit local economy/tourism;
The presence of a warden at the site will be necessary seven days a week from early morning to late evening to attend any visitors arriving/leaving the site;
A manager's presence is required at the site in case of any emergency and to control access to the site;
The proposed camping site will be operating all year, including winter months;
The intended on-site accommodation would provide security for the site and enhance level of safety within the local area, including safety of the farms' livestock;
There is an unmet need for caravan and camping provision in the district;
On site accommodation is recommended by the Good Practice Guide on Planning for Tourism."
I refer to these foregoing considerations as the Interested Party's "seven considerations"
"Officers accept that the operation of the site will require a presence of a warden/staff at the site to direct visitors, control access and provide overall management of the caravanning site. It is however considered that this could be achieved by other means (by provision of a small site hut/office for instance) and considering that the applicant lives in proximity of the site, does not justify the provision of an on-site mobile home in the Green Belt.
Furthermore, given that a staff presence can be achieved at the site for much of the day/evening without a residential use at the site, it is considered that the need for presence in case of an overnight emergency on a small touring camp site is likely to be very limited and does not justify the provision of a permanent mobile home on the site.
It has already been recommended that the operation of the camp site is limited to 10 months of the year. In any event, there will no doubt be seasonal fluctuations in respect of occupancy rates. These factors further reduce the case for the provision of a permanent mobile home on the site."
After recording the applicant's arguments based on security at the site and security of livestock, the Report continued:
"It is acknowledged that an on-site residency of the site manager would undoubtedly add to the level of natural surveillance in the areas and the comments in this respect provided by the Police Architectural Liaison Officer confirm the above.
Notwithstanding the above and the examples of theft and vandalism in the local area, it is considered that the locality of the application site is not more vulnerable to crime than any other rural area within the district. Given the above and the fact that a reasonable level of security at the proposed site can be provided without a residential occupation of the land, it is considered that the above arguments do not amount to very special circumstances which clearly outweigh the harm by reason of the inappropriateness and the visual impact of the mobile home." (emphasis added)
"It is considered that the support for the caravan/camping site in accordance with the above policy does not necessarily imply that a residential use of land associated with the above proposal must also be supported. In this case, it is considered that the business can operate without a permanent mobile home on the site.
The advice contained in the Good Practice Guide on Planning for Tourism is noted and has been taken into account when assessing the proposal. The guide recognises a need for some developments to include an on-site staff accommodation. However, for the reasons already given, it is not considered that the need for a permanent mobile home on the site has been demonstrated."
"Summary of consideration of very special circumstances
It is considered that there are very special circumstances to justify the proposed change the use of the land to a caravan/camping site in accordance with the guidance of NPPF and policy SC1 of the Core Strategy.
It is considered that this use can operate successfully without a permanent residential use of the site. It is therefore concluded that in this instance there are no very special circumstances to justify this part of the development within the Green Belt contrary to the guidance of the NPPF and policies CS1, CS3 of the Core Strategy."
Accordingly, the Officer recommended a split decision with approval (subject to conditions) for the 20 pitch site aspect of the development, and refusal of the proposed residential use of the land "as it is considered that no satisfactory justification for this part of the proposal has been made which clearly outweighs the harm to the Green Belt". At the end of the formal recommendation, there is a "Note", which is in the same terms as the Note in the Decision Notice, set out in paragraph below. It appears, from its inclusion in the Report, that at that stage that wording was intended to cover permission in respect only of the 20 pitch site.
Meeting on 8 November 2012 and the Minutes
"Notwithstanding Officers advice, Members felt that the proposed development in (2) above was appropriate to this location and would not result in any significant or unacceptable harm to the Green Belt."
Officer recommendation was for a split decision"
In the Minutes, the "proposed development in (2) above" was identified specifically as that part of the application seeking residential use of the mobile home. These minutes were formally approved as a correct record at the Committee's subsequent meeting on 29 November 2012.
The formal decision notice
"The use of the land for the purposes of siting of the mobile home shall be only for the benefit of the touring caravan and camping site's manager and her/his family to provide security and to manage the touring caravan and camping site.
Reason: To provide justification of very special circumstances for an inappropriate development within the Green Belt in accordance with the guidance of the NPPF."
"Having taken into account the submitted details and all material planning considerations, including those raised in the consultations and representations received, it is considered that the proposed use of land for a 20 pitch touring caravan/camping site, the siting of a mobile home and associated infrastructure is supported by very special circumstances and therefore is acceptable at this location and would not result in any significant or unacceptable harm by reason of its design, appearance, impact on local amenity and highway safety, effect on the openness of the Green Belt, drainage and flood risk, landscaping, drainage, crime prevention, ecology, minerals' extraction subject to the indicated planning conditions" (emphasis added)
As pointed out above, this same wording was included in Planning Officer's Report, where it applied only to the 20 pitch site. However, as included in the Decision Notice, these same words on their face apply to both aspects of the proposal, including residential use of the mobile home. The use of the same words is difficult to understand, and may suggest that no distinct reasons are being given in this Note for the specifically different position adopted by the Committee. The Decision Notice contains no reference to the Report or to the reasons therein relating to the residential use of the mobile home.
Ground 1: the Defendant gave no adequate reasons as to why the Application was justified by "very special circumstances.
Ground 2: the Defendant failed properly to interpret or take account of Green Belt policy.
(1) Were the summary reasons given by the Defendant inadequate?
(2) If so, is the appropriate remedy, a quashing order, an order for further reasons, or a declaration of breach of duty?
(3) If the appropriate remedy is a quashing order, should the Decision be quashed in full or only in part?
(1) Can the Court consider Ground 2 at all, given the Defendant's position?
(2) In the light of the answers in relation to Ground 1, should the Court consider Ground 2?
(3) If the Court considers Ground 2, was the Decision unlawful for failure to interpret Green Belt policy in respect of (a) the 20 pitch site and (b) the residential use of the mobile home?
Ground 1: Reasons
Issue (1): Adequacy of reasons
Issue (2): consequences of failure to provide adequate reasons
Issue (3): Whether to quash the Decision in part only
Ground 2: failure to interpret Green Belt policy