QUEEN'S BENCH DIVISION
33 Bull Street, Birmingham
B e f o r e :
| Mrs Jean Timmins
A W Lymn (The Family Funeral Service) Limited
|- and -
|Gedling Borough Council
James Strachan QC (instructed by Clyde & Co LLP) for the Second Claimant
Richard Kimblin and Hashi Mohamed (instructed by Helen Barrington, Gelding Borough Council) for the Defendant
Paul Tucker QC (instructed by Hill Dickinson LLP) for the Interested Party
Hearing dates: 14th February 2014
Crown Copyright ©
Mr Justice Green :
2. The facts
"3. The reason for reporting in this fashion is that Planning Committee needs to consider a number of common issues and reach a view on these before it is able to make either determination. The two most important decisions it must take are to determine:-
i) Whether there is a need for crematoria services in the Borough and if so at what scale.
ii) If this is a situation when, in determining the applications, alternatives to the proposals are a material consideration".
In section 7 of this report the planning officer advised the Committee of the options open to it. These were: (1) refuse planning permission for both crematoriums; (2) grant planning permission for both applications; (3) grant planning permission for one application and refuse the other (see paragraphs - of the Introductory Report). The report provided information to the Committee on the current proposals and the three previous proposals summarising in turn why each had been refused. It provided advice on national and local planning policy. In section 4 it provided legal and evidential advice in relation to the "very special circumstances" test. The report further set out the quantitative and qualitative evidence for "need" for crematoria services within the Borough, including within this section detailed isochronic evidence. The overall conclusion on "need" was in the following terms:
"96. It is considered that the Council has now had the fullest evidence presented to it on this matter. It certainly has more evidence before it than any of the previous Inspectors had. The decision as to whether need has been proven is extremely finely balanced but in terms of meeting the needs of the residents of the Borough it is therefore recommended that it is in the public interest that a single crematorium site is provided in the Borough to serve the Arnold and Carlton areas, and this is sufficient to be regarded as very special circumstances in this instance".
3. Ground 1: Scope and effect of section 9 NPPF on Green Belt policy
(i) Legal Framework
"17. The publication of the National Planning Policy Framework (NPPF) on 27th March 2012 has not altered the fundamental legal requirement under Section 38(6) of the Planning and Compulsory Purchase Act 2004 that decisions must be made in accordance with the Development Plan unless material considerations (such as the NPPF) indicate otherwise.
18. However, the NPPF makes clear at paragraphs 214 and 215 that the weight to be given to older development plans not prepared in accordance with NPPF was time limited. Paragraph 215 stated that, following a 12 month period from the date of the application of the NPPF, due weight should be given in determining planning applications to the relevant policies according to their consistency within the Framework".
"21. The NPPF is an important material consideration in determining the applications. The aim of the NPPF is to deliver "sustainable development" which balances environmental, social and economic objectives. As part of this the NPPF includes a presumption in favour of sustainable development, which should be seen as a golden thread running through both the plan-making and decision-making.
22. However the NPPF, in Section 9 (paragraphs 79-92), still retains the requirement that inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances. It goes on to say that 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.
23. The NPPF goes [on] (sic) to define the construction of new buildings as inappropriate with various exceptions. Building for crematoria are not listed in the exception".
(ii) Defendant's interpretation of NPPF
"469. With regard to the proposed cemetery, the list of appropriate Green Belt uses within paragraph 89 of the NPPF and Policy ENV 26 of the RLP include cemeteries and, as such, this element of the proposal is acceptable in policy terms, if it were proposed on its own.
470. In my opinion, therefore, the proposed cemetery constitutes an appropriate form of development within the Green Belt and that, given the nature of the proposed use, its extent and the fact that it would be screened by existing and proposed hedgerows, it would preserve the openness of the Green Belt in this location and would not conflict with any of the purposes of including land within the Green Belt, in accordance with Policy ENV 26 of the RLP and paragraphs 89 of the NPPF".
"79. The Government attaches great importance to Green Belts. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the essential characteristics of Green Belts are their openness and their permanence".
Paragraphs 87-90 of section 9 NPPF sets out various exceptions where a development will not be subject to the very special circumstances test but may be subject to some other criteria of assessment. The second bullet point in paragraph 89 refers to cemeteries. These paragraphs provide:
"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:
- buildings for agriculture and forestry;
- 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;
- the extension or alteration of a building provided that it does not result in disproportionate additions over and above the size of the original building;
- the replacement of a building, provided the new building is in the same use and not materially larger than the one it replaces;
- limited infilling in villages, and limited affordable housing for local community needs under policies set out in the Local Plan; or
- limited infilling or the partial or complete redevelopment of previously developed sites (Brownfield Land), whether redundant or in continuing use (excluding temporary buildings), which would not have a greater impact on the openness of the Green Belt and the purpose of including land within it than the existing development.
90. Certain other forms of development are also not inappropriate in Green Belt provided they preserve the openness of the Green Belt and do not conflict with the purposes of including land in Green Belt. These are:
- mineral extraction;
- engineering operations;
- local transport infrastructure which can demonstrate a requirement for a Green Belt location;
- the re-use of buildings provided that the buildings are of permanent and substantial construction; and
- development brought forward under a Community Right to Build Order".
"…it should be noted that the cemetery element of the proposal does not conflict with the GB".
It is clear from a reading of the Introductory Report and the Westerleigh and Lymn Reports that the Planning Officer considered that, substantively, it was only the crematoria element of each application that needed to be justified upon the basis that it was prima facie "inappropriate" and therefore had to be measured against the "very special circumstances" test for approval. There is no reference in any of the Reports to the cemetery element of the Westerleigh application being subject to an equivalent "very special circumstances" assessment. On the contrary the officer's assessment assumed that a cemetery in the Green Belt should be assessed by the lesser test set out in paragraph 89 NPPF (set out above). Accordingly, the manner in which the Planning Officer assessed each application was upon the basis that the cemetery element in the Westerleigh application did not need the same level of justification as the crematorium element.
(iii) Analysis of the scope and effect of section 9 NPPF
(a) Question 1: Scope of paragraph 89 NPPF
(b) Question 2: Does Chapter 9 NPPF apply in principle to all developments?
"68. In paragraph 15 of the present decision letter the Inspector did not state in terms that there were very special circumstances which justify permitting inappropriate development in the Green Belt. The decision letter has to be read as a whole and if this was the only point of criticism I would have accepted Mr Litton's submission that since this was the test posed in paragraph 13 it would be unrealistic to assume that it was not still in the Inspector's mind in paragraph 15 of the decision letter. However, it is very important that full weight is given to the proposition that inappropriate development is by definition harmful to the Green Belt. That policy is a reflection of the fact that there may be many applications in the Green Belt where the proposal would be relatively inconspicuous or have a limited effect on the openness of the Green Belt, but if such arguments were to be repeated the cumulative effect of any permissions would destroy the very qualities which underlie the Green Belt designation. Hence the importance of recognising at all times that inappropriate development is by definition harmful, and then going on to consider whether there will be additional harm by reason of such matters as loss of openness and impact on the function of the Green Belt".
"3.12 The statutory definition of development includes engineering and other operations, and the making of any material change in the use of land. The carrying out of such operations and the making of material changes in the use of land are inappropriate development unless they maintain openness and do not conflict with the purposes of including land in the Green Belt. (Advice on material changes in the use of buildings is given in paragraph 3.8 above)".
The present development constituted a change of use from agricultural land to a cemetery. Had paragraph 3.12 of PPG2 been applied then it would be considered appropriate insofar as it maintained openness and did not conflict with the purpose of including land in the Green Belt. However that paragraph has not been replicated in the NPPF. This, in my view, was intentional and reflects a deliberate shift in policy towards a tightening of the circumstances in which development could occur within the Green Belt.
(iv) Relevant authorities
"19. Previous national policy in relation to Green Belt development defined material changes of use as inappropriate unless they maintained openness and did not conflict with the purposes of including land within the Green Belt – see PPG2, Paragraph 3.12. That approach has not been carried through into the NPPF. However, where the preferred approach is to attempt to define what is capable of being "not inappropriate" development within the Green Belt with all other development being regarded as inappropriate by necessary implication. It is for this reason that there is no definition within Chapter 9 of the NPPF of what constitutes inappropriate development, or any criteria by which whether a proposed development is or is not appropriate could be ascertained. It is for that reason that Paragraph 89 of the NPPF provides that a particular form of development – the construction of new buildings – in the Green Belt is inappropriate unless one of the exceptions identified in the Paragraph applies. Paragraph 90 defines the "other forms of development" there referred to as also at least potentially not inappropriate. The effect of Paragraph 87, 89 and 90, when read together is that all development in the Green Belt is inappropriate unless it is either development (as that word is defined in s.55 of the TCPA) falling within one or more of the categories set out in Paragraph 90 or is the construction of a new building or building that comes or potentially comes within one of the exceptions referred to in Paragraph 89".
In paragraph 24 the Judge concluded that paragraphs 89 and 90 NPPF comprised closed lists of classes of development that were capable of being "not inappropriate" by way of exception to the general rule and that there was no general exception for changes of use that maintained the openness of the Green Belt and did not conflict with the purposes of the policy of the Green Belt.
(v) The Kemnal Manor point
"30. Both applications are for inappropriate development in the Green Belt. It should be noted that even if an application contains elements that on their own would be appropriate development (such as a cemetery), the Courts have held that the whole of the development is still to be regarded as inappropriate".
"I would emphasise that a development is not to be seen as acceptable in green belt policy terms merely because part of it is appropriate. That would be the fallacy committed by the curate when tackling his bad egg".
"9. However, if Fordent had been available at that time of writing the report, they would have gone on to consider whether the very special circumstances justified the approval of the cemetery as inappropriate development".
Mr Morley is the Principal Planning Officer of the Defendant and was one of the team dealing with the application made by the Claimant and the Interested Party. I should also observe that the judgment in Fordent was delivered on 26th September 2013, some months after the Decision in this case so of course Mr Morley and his team did not have the benefit of sight of this judgment when they composed the Reports.
(vii) Materiality of the error of law
"• Alternatively the new cemetery would bring over 94,000 people within a 30 minute catchment area and a further drive time improvement for an additional 66,449 people".
"280. The provision of a crematorium and a burial ground is better than just a crematorium alone. Having a cemetery for the burial and scattering of ashes on the same grounds as the crematorium means the bereaved can go back to somewhere peaceful to be close to their loved one, which would be appreciated".
In paragraph 96 of the Introductory Report set out at paragraph  above in relation to the Planning Officers overall conclusion on "need", it is recorded that the decision for the Committee was in the Officers view "extremely finely balanced".
"Without prejudice to the Interested Party's submissions on ground 1 it is noted that both Claimants have stressed concerns over the treatment of that part of the planning application which related to the cemetery. It is further noted that in respect of A.W. Lymn that this is a claim brought by a competitor whose real concern revolves over the grant of permission to a direct rival to its proposal for a new crematorium. In those circumstances the Interested Party proposes to enter into a unilateral obligation under s.106 which will commit it not to bring forward developments at that part of the planning permission which relates to the cemetery. Such an obligation will be completed in advance of the forthcoming hearing. In the circumstances further consideration of ground 1 is thereby rendered academic, irrespective of the competing merits of the parties".
This is, notwithstanding the pragmatism inherent in the argument, not an answer to the criticism made. For the reasons already given it is possible that as of the date of the Decision the Planning Committee was materially influenced by the attractions of a combined crematorium and cemetery. The unilateral section 106 obligation comes far too late to affect the decision making of the Planning Committee. It cannot, therefore, have any effect upon the analysis of the materiality of the Defendant's error which must be measured as at the date of the Decision.
(viii) The commercial character of the Lymn application
(ix) Relevance of witness statement evidence
(x) Conclusion: Ground 1
4. Ground 2: Openness v Visual impact
(i) Ground 2: The issue
(ii) The Claimants' case: Wrongful elision of openness and visual impact by the Defendant
(a) Example 1: The Westerleigh Report, paragraphs 466-470.
"466. With regard to the openness of the Green Belt, it is considered that the amount of built development and the level of parking provision is both proportionate and essential to the proposed use, given that any harm arising as a consequence is outweighed by the very special circumstances that have been demonstrated in the Introduction Report. The layout, scale, appearance, and use of existing contours would minimise the overall impact of the proposed development in this respect and I am satisfied that the proposed levels would ensure that the proposed development would not be unduly prominent on the ridgeline.
467. The impact on openness would be further mitigated by existing hedgerows and hedgerow trees around the site and as the proposed landscaping matures. It is considered that the level of activity which would be generated would not have any undue impact on the openness of this part of the Green Belt.
468. As such, it is considered that, given the very special circumstances that apply in this case, the proposed development would not unduly harm the openness of the Green Belt and consider that the proposal complies with Policy ENV26 of and paragraphs 80, 87, 88 and 89 of the NPPF".
"469. With regard to the proposed cemetery, the list of appropriate Green Belt uses within paragraph 89 of the NPPF and Policy ENV26 of the RLP includes cemeteries and, as such, this element of the proposal is acceptable in policy terms, if it were proposed on its own.
470. In my opinion, therefore, the proposed cemetery constitutes an appropriate form of development within the Green Belt and that, given the nature of the proposed use, its extent and the fact that it would be screened by existing and proposed hedgerows, it would preserve the openness of the Green Belt in this location and would not conflict with any of the purposes of including within the Green Belt, in accordance with Policy ENV26 of the [the GBC Plan] and paragraphs 89 of the NPPF".
(b) Example 2: The Introductory Report: Table at paragraph 127
|Openness of Green Belt
||Local impact on openness||Local impact on openness partly mitigated by demolition|
|Landscape (Landscape Character)||Slight Adverse||Moderate Adverse|
|Landscape (visual impact)||Slight adverse||Moderate adverse|
(c) Example 3: Planning Officer's Oral Address and Additional Material to Members of the Planning Committee (8 May 2013)
Openness of GB;
W[esterleigh]; Regarding the impact on the openness of the GB, the scale of development and parking is considered to be proportionate. Proposal uses contours and layout, including the footprint of the bldg and its location within the site to minimise impact. Not unduly prominent on ridgeline. Therefore local impact on openness. It should be noted that the cemetery element of the proposal does not conflict with the GB.
L[ymn]; overall similar local impact on openness. Strength here is that there are already buildings on site, which already have an impact".
(iii) Analysis: The relationship between openness and visual impact
"The Government attaches great importance to the Green Belt. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the essential characteristics of Green belts are their openness and their p-permanence".
"its visual impact and, in the circumstances of the present case, whether the new dwelling would preserve or enhance the character or appearance of the conservation area…".
"21. Paragraph 3.6 is concerned with the size of the replacement dwelling, not with its visual impact. There are good reasons why the relevant test for replacement dwellings in the Green Belt and Metropolitan Open Land is one of size rather than visual impact. The essential characteristic of Green Belts and Metropolitan Open Land is their openness (see paragraph 7 above). The extent to which that openness is, or is not, visible from public vantage points and the extent to which a new building in the Green Belt would be visually intrusive are a separate issue. Paragraph 3.15 of PPG 2 deals with "visual amenity" in the Green Belt in those terms:
"The visual amenities of the Green Belt should not be injured by proposals for development within or conspicuous from the Green Belt which, although they would not prejudice the purposes of including land in Green Belts, might be visually detrimental by reason of their siting, materials or design".
The fact that a materially larger (in terms in footprint, floor space or building volume) replacement dwelling is more concealed from public view than a smaller but more prominent existing dwelling does not mean that the replacement dwelling is appropriate development in the Green Belt or Metropolitan Open Land".
"22. The loss of openness (i.e. unbuilt on land) within the Green Belt or Metropolitan Open Land is of itself harmful to the underlying policy objective. If the replacement dwelling is more visually intrusive there will be further harm in addition to the harm by reason of inappropriateness, which will have to be outweighed by those special circumstances if planning permission is to be granted (paragraph 3.15 of PPG 2, above). If the materially larger replacement dwelling is less visually intrusive than the existing dwelling then that would be a factor which could be taken into consideration when deciding whether the harm by reason of inappropriateness was outweighed by very special circumstances".
"37. The planning officer's approach can be paraphrased as follows:
"The footprint of the replacement dwelling will be twice as large as that of the existing dwelling, but the public will not be able to see very much of the increase".
It was the difficulty of establishing in many cases that a particular proposed development within the Green Belt would of itself cause "demonstrable harm" that led to the clear statement of policy in paragraph 3.2 of PPG 2 that inappropriate development is, by definition, harmful to the Green Belt. The approach adopted in the officer's report runs the risk that Green Belt or Metropolitan Open Land will suffer the death of a thousand cuts. While it may not be possible to demonstrate harm by reason of visual intrusion as a result of an individual - possibly very modest - proposal, the cumulative effect of a number of such proposals, each very modest in itself, could be very damaging to the essential quality of openness of the Green Belt and Metropolitan Open Land.
38. Turning to paragraph 6.8.5, the question was not whether the "loss" of Metropolitan Open Land as a result of this particular development was "significant". Again it would be extremely difficult in many cases to demonstrate that a "loss" of Metropolitan Open Land or Green Belt as a result of a particular proposal would be "significant". It is precisely this danger that the policy approach in paragraph 3.2 of PPG 6 is intended to avoid. The question was whether the replacement dwelling was materially larger, not whether it was no more visually intrusive from the Heath. The report simply failed to grapple with that key question".
(iv) How to construe the Officers Reports
"32. I am mindful of the fact that the report is not to be construed as though it was a statutory instrument. The dicta of Lord Justice Hoffmann (as he then was) in South Somerset District Council v Secretary of State for Environment  1 PLR 80 apply with even greater force to an officer's report to a planning committee. Lord Justice Hoffman was dealing with an inspector's decision letter:
"The inspector is not writing an examination paper on current and draft development plans. The letter must be read in good faith and references to polices must be taken in the context of the general thrust of the inspector's reasoning. A reference to a policy does not necessarily mean that it played a significant part in the reasoning: it may have been mentioned only because it was urged on the inspector by one of the representatives of the parties and he wanted to make it clear that he had not overlooked it. Sometimes his statement of the policy may be elliptical but this does not necessarily show misunderstanding. One must look at what the inspector thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the relevant policy or proposed alteration to the policy." (Page 83)".
"74. It is important that the need to establish the existence of very special circumstances, not merely special circumstances in Green Belt cases is not watered down. Even if it cannot be categorised as perverse, this decision is so perplexing on its face that it is of particular importance that the Inspector should be seen to have applied the correct test in Green Belt policy terms. I fully accept that there will be many cases where the underlying merits of the decision are relatively obvious, so that the court can safely ignore what might be regarded as infelicities in drafting. It may be obvious in the great majority of cases but it would make no difference whatsoever to the eventual conclusion on the merits whether the true test was whether one factor was outweighed by another, as opposed to whether it was clearly outweighed by another, or whether limited harm to openness was to be regarded as reducing harm in Green Belt policy terms, or as additional harm over and above that due to inappropriateness, or whether circumstances were described as special rather than very special.
75. In most decisions, fine distinctions of that kind are likely to be of no practical importance and dismissed as matters of emphasis, but there will be a small minority of very finely balanced cases where such detail will be important. This is such a case, given the terms of paragraph 15 of this decision letter I am left in real doubt as to whether the policy in paragraph 3.2 of PPG2 was correctly applied by the Inspector".
(v) The approach adopted by the Defendant
a) "…the level of traffic activity which would be generated would not have any undue impact on the openness of this part of the Green Belt" (Westerleigh Report paragraph 467);
b) "given the nature of the proposed use, its extent and the fact that it would be screened by existing and proposed hedgerows , it would preserve the openness of the Green Belt" (Westerleigh Report paragraph 470 in relation to the cemetery);
c) The reference to "local" in the comparative table at paragraph 127 of the Introductory Report (set out in paragraph  above);
d) "Proposal uses contours and layout, including the footprint of the bldg and its location within the site to minimise impact. Not unduly prominent on ridgeline. Therefore local impact on openness. It should be noted that the cemetery element of the proposal does not conflict with the GB. L[ymn]; overall similar local impact on openness. Strength here is that there are already buildings on site, which already have an impact" (oral presentation of the Officer to the Committee set out at paragraph  above).
- Paragraph 466 expressly refers to the weighing exercise and I consider that it is fair to read the references to "layout, scale, appearance and use of existing contours" as "minimising the impact of the proposed development in this respect" in that paragraph as a reference to the role that visual impact plays in that weighing exercise.
- The reference to the "impact on openness would be further mitigated by" in paragraph 467 should be read in the context of the reference to very special circumstances in paragraph 468.
- The oral observations Proposal uses contours and layout, including the footprint of the bldg and its location within the site to minimise impact. Not unduly prominent on ridgeline. Therefore local impact on openness" is not unequivocal as the Claimants submit. The reference to "minimising impact" is a reference to how landscaping reduces the effects of the building but it does not suggest that the harm of openness will necessarily thereby be lessened in quantitative terms. It can fairly be understood to be a reference to the impact that the development has on openness (which remains a constant) being mitigated in the overall weighing exercise by measures to reduce visual impact.
5. Ground 3: The scope of Article 31(1)(cc) of the DMPO
(i) Ground 3: The issue
(ii) Statutory Framework
"(cc) Where sub-paragraph (a) or (b) applies the notice shall include a statement explaining how, in dealing with the application, the local planning authority have worked with the applicant in a positive and proactive manner based on seeking solutions to problems arising in relation to dealing with the planning application…".
This sub-paragraph was added by the Town and Country Planning (Development Management Procedure) (England) (Amendment No. 2) Order 2012/2274, 1st December 2012. There is, accordingly, no dispute but that the obligation contained therein applied in the present case.
"In addition, one of the statutory instruments introduces a requirement for local planning authorities, from 1 December 2012, to include a statement on every decision letter stating how they have worked with the applicant in a positive and proactive way, in line with the NPPF. We envisage that in the majority of cases it will be sufficient for the authority to include a simple statement, confirming that they implemented the requirement in the NPPF".
"186. Local planning authorities should approach decision-taking in a positive way to foster the delivery of sustainable development. The relationship between a decision-taking and plan-making should be seamless, translating plans into high quality development on the ground.
187. Local planning authorities should look for solutions rather than problems, and decision-takers at every level should seek to approve applications for sustainable development where possible. Local planning authorities should work proactively with applicants to secure developments that improve the economic, social and environmental conditions of the area".
(iii) The statement made by GBC in the decision letter
"Planning Statement – The Borough Council has worked positively and proactively with the applicant in accordance with paragraphs 186 to 187 of the National Planning Policy Framework".
(iv) The challenge to the statement
(v) The purpose behind the obligation in Article 31(1)(cc)
(vi) Conclusion on breach
(vii) Consequences of breach: Parties' submissions
(viii) Conclusion on Ground 3
i) No necessary connection between breach and merits of the substantive decision: A breach of Article 31 does not have an automatic or necessary connection with the merits of a planning decision. It is quite possible, for instance, to envisage the situation of a decision that was impeccable in every way but which had not been taken following any or any sufficient "positive" engagement with applicant(s). Is a Court to strike down such a decision? It seems to me that in the absence of a clear nexus between the breach and the Decision it would be wrong (disproportionate) to assume that every breach of the article necessarily justifies a quashing remedy.
ii) No clear obligation on planning authorities to engage in positive / pro-active engagement: No express obligation is imposed upon planning authorities to engage in proactive engagement with applicants. Nothing of that sort is found in the relevant legislation. There is for example no statutory obligation upon planning authorities to "approach decision making in a positive way" (to use the language of paragraph 186 NPPF) or to "work proactively with applicants to secure developments that improve the economic, social and environmental conditions of the area" (to use the language of paragraph 187 NPPF). Further the obligation in Article 31 assumes that authorities have (already) acted positively and imposes a form of ex post facto certification obligation upon them to state "how". But it does not itself impose an a priori obligation to act positively. The nearest the law comes to creating an obligation of this nature is to identify the desirability of authorities behaving in a positive manner as a material consideration in the NPPF and for that to then become relevant under section 38(6) PCPA 2004. But even here the NPPF simply states that planning authorities should "take account of" policies set out in the NPPF (cf paragraphs 212 – 215). In fact the NPPF is predominantly concerned with policies that impact directly upon the substantive merits of the decisions being taken; the exhortation upon authorities to act positively and proactively seems to be a weaker and less precise and direct consideration than other policies which go to the heart of the merits of an application. In my view the fact that the obligation is brought into the law through a relatively weak mechanism is a further factor that militates against an automatic assumption that quashing is the appropriate and proportionate remedy for every breach of the article.
iii) The extent of the duty on planning authorities: In fashioning a remedy the Court should also have in mind what the obligation breached otherwise required the authority to do. The obligation here is to explain "how" the authority has been positive and proactive. I do not consider that this should be treated as a very onerous obligation. It should ordinarily suffice for the authority to produce a concise statement of the main steps taken at the relevant time to encourage applicants in a positive and proactive manner. This case is not the occasion to attempt to set out in any detail what the content of such statements should be. Guidance can however be obtained by reference to the sorts of activities set out in paragraphs 188-207 of the NPPF, which are the paragraphs elaborating upon paragraphs 186 and 187. In particular, I do not envisage that the authority is required to provide a detailed, blow by blow, chronological, account of relations with applicant(s). I am in particular concerned that if this were the case it would serve to provide ammunition and encouragement for what might then become undesirable satellite litigation and applications for pre-action disclosure, which seems to me to be contrary to the spirit and intent of the NPPF as a whole.
iv) No utility in remitting in this case: Given that the Decision is going to be set aside and remitted anyway, there is no present utility in remitting the Article 31 issue for the statement to be re-issued. Once a new decision is taken the Defendant can readdress the obligation in Article 31 afresh.
v) The approach adopted by the authority: Finally and importantly there are the facts of this case. In selecting an appropriate remedy I have taken account of the approach that the Defendant adopted towards its obligations under Article 31. This is not a case where it is suggested that the Defendant authority failed altogether to engage with the applicant(s) at an early stage or otherwise address itself to paragraphs 186 and 187 NPPF. The authority did what it believed was the advised course of action, as set out in the Chief Planner's letter. The point of law arising is entirely novel and in the light of the Chief Planners letter the error is understandable. I consider that this is one of those rare cases where it is sensible, pragmatic and permissible to examine the Defendant's evidence (see discussion at Section 6 below). In this regard Mr Morley has explained in his Witness Statement (paragraphs 46 – 50) that he and his team did work positively and proactively with the applicants and that they did this by seeking solutions to problems by:"Meeting the applicant & agent to discuss consultation response.Providing details of issues raised in consultation responses.Requesting clarification, additional information or drawing in response to issues raised.Providing updates on the applicant progress.Holding a Technical Briefing for Members of the Planning Committee by the applicant & his team".
6. The admissibility of after the event evidence by the Planning Authority
(i) The different uses of after the event evidence
(ii) The reluctance of courts to allow elucidatory statements
"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 parte 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 in 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".
"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".
"51. I add that I would strongly discourage the use of witness statements from Inspectors in the way deployed here. The statutory obligation to give a decision with reasons must be fulfilled by the decision letter, which then becomes the basis of challenge. There is no provision for a second letter or for a challenge to it. A witness statement should not be a backdoor second decision letter. It may reveal further errors of law. In my view, the statement is not admissible, elucidatory or not
52. However, if that is wrong, the question whether the statement elucidates or contradicts the reasoning in the decision letter, and so is admissible or inadmissible on Ermakov principles, can only be resolved once the decision letter has been construed without it. To the extent that a Court concludes that the reasoning is legally deficient in itself, or shows an error of law for example in failing to deal with a material consideration, it is difficult to see how the statement purporting to resolve the issue could ever be merely elucidatory. A witness statement would also create all the dangers of rationalisation after the event, fitting answers to omissions into the already set framework of the decision letter, risking demands for the Inspector to be cross-examined on his statement, and creating suspicions about what had actually been the reasons, all with the effect of reducing public and professional confidence in the high quality and integrity of the Inspectorate.
53. Inspectors could be required routinely to produce witness statements when a reasons challenge was brought or when it was alleged that a material consideration had been overlooked, since the challenging advocate would be able to say that, in its absence, there was nothing to support the argument put forward by counsel for the Secretary of State, when there so easily could have been, and he must therefore be flying kites of his own devising. This is not the same as an Inspector giving evidence of fact about what happened before him, which can carry some of the same risks, but if that is occasionally necessary, it is for very different reasons".
7. Overall conclusion
i) The applications succeed on Ground 1. The Decision is quashed and remitted to be taken again.
ii) The applications fail on Ground 2.
iii) The Lymn application succeeds on Ground 3 but only to the extent that a declaration is granted.