QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
on the application of
- and -
WYCHAVON DISTRICT COUNCIL
Peter Goatley (instructed by Legal & Support Services Wychavon District Council) for the Defendant
The Interested Party did not appear and was not represented
Hearing dates: 12th June 2014
Crown Copyright ©
Mrs Justice Lang:
Grounds for Judicial Review
"2. The power to impose conditions when granting planning permission is very wide. If used properly, conditions can enhance the quality of development and enable many development proposals to proceed where it would otherwise have been necessary to refuse planning permission. The objectives of planning, however, are best served when that power is exercised in such a way that conditions are clearly seen to be fair, reasonable and practicable…"
"3. Paragraphs 14 - 42 of the Annex stress that conditions should only be imposed where they are both necessary and reasonable, as well as enforceable, precise and relevant both to planning and to the development to be permitted. Attention is particularly drawn to paragraphs 15 - 17 which advise that in considering whether a condition is necessary authorities should ask themselves whether planning permission would have to be refused if the requirements of that condition were not imposed. If it would not, then the condition needs special and precise justification…."
"It has long been established that a planning authority must proceed upon a proper understanding of the development plan: see, for example, Gransden & Co Ltd v Secretary of State for the Environment (1985) 54 P & CR 86, 94 per Woolf J, affd (1986) 54 P & CR 361; Horsham DC v Secretary of State for the Environment (1991) 63 P & CR 2319, 225-226 per Nolan LJ. The need for a proper understanding follows, in the first place, from the fact that the planning authority is required by statute to have regard to the provisions of the development plan: it cannot have regard to the provisions of the plan if it fails to understand them. It also follows from the legal status given to the development plan by section 25 of the 1997 Act. The effect of the predecessor of section 25, namely section 18A of the Town and Country (Planning) Scotland Act 1972 (as inserted by section 58 of the Planning and Compensation Act 1991), was considered by the House of Lords in the case of City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33,  1 WLR 1447. It is sufficient for present purposes to cite a passage from the speech of Lord Clyde, with whom the other members of the House expressed their agreement. At p.44, 1459, his lordship observed:
"In the practical application of sec. 18A it will obviously be necessary for the decision-maker to consider the development plan, identify any provisions which are relevant to the question before him and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it."
"That is not to say that such statements should be construed as if they were statutory or contractual provisions. Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and the exercise of their judgment can only be challenged on the ground that it is irrational or perverse (Tesco Stores Ltd v. Secretary of State for the Environment  1 WLR 659, 780 per Lord Hoffmann)."
"(1) The Secretary of State must not act perversely. That is, if the court considers that no reasonable person in the position of the Secretary of State, properly directing himself on the relevant material, could have reached the conclusion which he did reach, the decision may be overturned. See, e.g. Ashbridge Investments Ltd v. Minister of Housing and Local Government  1 W.L.R. 1320, per Lord Denning M.R. at 1326F and Harman L.J. at 1328H. This is really no more than another example of the principle enshrined in a sentence from the judgment of Lord Greene M.R. in Associated Provincial Picture Houses v. Wednesbury Corporation  1 KB 223 at 230:
'It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere.'
(2) In reaching his conclusion the Secretary of State must not take into account irrelevant material or fail to take into account that which is relevant: see, e.g. again the Ashbridge Investments case, per Lord Denning M.R. loc. cit."
"A decision may be quashed if it is based on a finding of fact or inference from the facts which is perverse or irrational; or there was no evidence to support it; or it was made by reference to irrelevant factors or without regard to relevant factors. It is not necessary to identify a specific error of law; if the decision cannot be supported the court will infer that the decision-making authority misunderstood or overlooked relevant evidence or misdirected itself in law. The court cannot substitute its own findings of fact for those of the decision-making authority if there was evidence to support them; and questions as to the weight to be given to a particular piece of evidence and the credibility of witnesses are for the decision-making authority and not the court. But these are the only significant limitations on the court's jurisdiction, and they are not very different from the limitations which practical considerations impose on an appellate court with full jurisdiction to entertain appeals on fact or law but which deals with them on the papers only and without hearing oral evidence."
"… An allegation that an Inspector's conclusion on the planning merits is Wednesbury perverse is, in principle, within the scope of a challenge under section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits.
In any case, where an expert tribunal is the fact finding body the threshold of Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments. For example: is a building in keeping with its surroundings? Could its impact on the landscape be sufficiently ameliorated by landscaping? Is the site sufficiently accessible by public transport? et cetera. Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable.
Moreover, the Inspector's conclusions will invariably be based not merely upon the evidence heard at an inquiry or an informal hearing, or contained in written representations but, and this will often be of crucial importance, upon the impressions received on the site inspection. Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment, faces a particularly daunting task ..."
a) A report is not addressed to the world at large but to council members, who, by virtue of that membership, may be expected to have substantial local and background knowledge including local development plan polices.
b) It is not necessary for the report to set out development plan policies as it is reasonable to anticipate that the members will be familiar with that material.
c) The report should not contain excessive and unnecessary detail.
d) Reports do not (and should not) seek to be exhaustive.
e) The report by a planning officer to his committee is not and is not intended to provide a learned disquisition of relevant legal principles or to repeat each and every detail of the relevant facts to members of the committee who are responsible for the decision and who are entitled to use their local knowledge to reach it.
f) The report is not susceptible to textual analysis appropriate to the construction of a statute or the directions provided by a judge when summing a case up to the jury.
g) The courts should not impose too demanding a standard upon such reports, for otherwise their whole purpose will be defeated.
h) An application for judicial review based on criticisms of the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the Planning Committee before the relevant decision is taken.
i) It is the job of the Council, and not the court's, to weigh the competing public and private interests involved.
".. it is for the decision-maker and not the court, subject again to Wednesbury review, to decide upon the manner and intensity of inquiry to be undertaken into any relevant factor accepted or demonstrated as such. This view is I think supported by the judgment of Schiemann J in R v Nottingham City Council, Ex p Costello (1989) 21 HLR 301, to which Mr Luba referred us. That case concerned the degree of inquiry which an authority was obliged to undertake into issues of priority need and intentional homelessness. Schiemann J said, at p 309:
"In my view the court should establish what material was before the authority and should only strike down a decision by the authority not to make further inquiries if no reasonable council possessed of that material could suppose that the inquiries they had made were sufficient."
This approach is lent authoritative support by the decision of this court in R v Kensington and Chelsea Royal London Borough Council, Ex p Bayani (1990) 22 HLR 406, which was concerned with the authority's duty of inquiry in a homelessness case. Neill LJ said, at p 415:
"The court should not intervene merely because it considers that further inquiries would have been sensible or desirable. It should intervene only if no reasonable housing authority could have been satisfied on the basis of the inquiries made."
"GD2 GENERAL DEVELOPMENT CONTROL
All development proposals should follow the principles of sustainable development as set out in national, regional and structure plan policy.
Proposals for development that are also in accordance with Policy GD1 (Location Strategy) will be permitted where they would not have an adverse effect (where relevant) on any of the following:
a) the character or appearance of the building, the surrounding built environment, or the rural landscape;
b) public and private amenity, health and safety;
c) the efficient operation of surrounding land uses;
d) environmental and cultural heritage resources, nature conservation and public rights of way;
e) the efficient operation of the transport network;
f) the capacity of existing or proposed utility services and social infrastructure to support the development.
Relevant criteria in assessing development proposals will normally include access and transport arrangements, layout and design, the type and intensity of proposed uses, any cumulative impacts, and any mitigating measures."
"ECON7 AGRICULTURAL BUILDINGS, STRUCTURES AND ASSOCIATED WORKS
Where planning permission is required, development for the purposes of agriculture or forestry will be permitted, provided:
a) it is necessary and designed for these purposes;
b) it makes acceptable arrangements for the storage/disposal of waste; and
c) any new buildings or structures are sited close to existing farm or forestry buildings, unless the functional need for a more isolated site can be clearly demonstrated."
The Defendant's decision
Conclusions on livestock
"The building hereby approved shall only be used to store agricultural equipment for use on the applicant's land and for the shelter of livestock and shall not be used for any general storage purposes.
Reason – In order to protect the amenities of the area and to comply with saved Local Plan Policy ECON7 in restricting building in the open countryside unless there is a proven agricultural need and justification."
B. Waste and drainage
Conclusions on waste and drainage
"6. Prior to the first use of the building hereby approved, details of the proposed disposal of manure shall be submitted to and approved by the Local Planning Authority. The agreed measures shall be implemented before the first use of the building hereby approved.
Reason – In order to preserve the amenities of the area and in the interests of the amenities of neighbouring residential properties in line with saved Local Plan policy GD2, and criteria b) of Policy ECON7."
"4. Development shall not begin until drainage works have been carried out in accordance with details to be submitted to and approved in writing by the Local Planning Authority.
Reason – To ensure a satisfactory means of drainage is available to serve the development."
" a Local Planning Authority may, .. when granting full or outline planning permission, impose a condition requiring that details of a specified aspect of the development which was not fully described in the application … be submitted for approval before the development is begun. In the case of a full permission, such a condition can relate to details (such as landscape works) which might have been reserved matters had the application been made in outline."
Illustrations of acceptable conditions are set out in Appendix A. It includes a drainage condition in very similar terms to the one used in this case.
C. Highways and traffic
Conclusions on highways and traffic
"As the building is intended for agricultural purposes, it is unlikely that this use would have any significant impact on traffic generation in the area or the local highway network."
D. Location of the building
"The existing buildings are not considered to be fit for purpose or of a suitable size for the proposed use – particularly in terms of the heights of these existing buildings being suitable for the machinery and space for goat pens"
"Nonetheless there is no information submitted with this application to demonstrate … whether these buildings could be used to provide livestock shelter as sought by this application."
"The site area in the applicant's ownership … measures approximately 11 acres .. Whilst there are existing buildings in the immediate vicinity and no landscape objection is raised to the siting of that proposal, it is considered that the siting of the building for livestock shelter would not be functionally suitable being detached from the dwelling. Whilst reference has been made to the existing field access and also the ease of allowing vehicle access to the building it is considered that it would also be possible to provide suitable vehicle access on land nearer to the main house. It is noted that the dwelling is a listed building and as such it may not be appropriate to site a building immediately close to the property, however no information or justification has been submitted to demonstrate whether alternative sites have been considered."
"the revised application with the additional information complies with criterion … c) of this policy in that it has been demonstrated that there is a functional requirement for a new building in this location (separated from the main house and other existing buildings)."
"2. The Planning Officer has raised the question as to why the proposed building cannot be moved closer to the residence dwelling at Swanbrook House.
This would bring the livestock closer to a non-agricultural dwelling opposite Swanbrook House which is in direct conflict to the guidelines that Wychavon offer…"