QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BIRMINGHAM
Priory Courts, 33 Bull Street
B e f o r e :
| THE QUEEN on the application of
|- and -
|AMBER VALLEY BOROUGH COUNCIL
|- and -
MR & MRS MICHAEL WOOD
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Andrew Hogan (instructed by Geldards LLP) for the Defendant
The Interested Parties not appearing or being represented
Hearing dates: 24-25 March 2014
Crown Copyright ©
Mr Justice Hickinbottom:
The Relevant Planning Policies
"Within the built framework of all other settlements not listed in Policy H3, planning permission will be granted for housing development, providing the proposals are in the form of one or more of the following:-
1. the conversion of existing dwellings to provide additional units, or of existing buildings to housing from other uses
2. extensions to or replacement of existing dwellings
3. new development on previously developed or brownfield land, or on vacant land which has not been previously developed, providing the development is in the form of infilling of small gaps capable of accommodating no more than 2 dwellings within existing groups of houses, subject to the character of the surroundings."
"3.47 Outside settlements, housing development needs to be strictly controlled
3.51 Although Housing Policy 5 of the adopted Joint Structure Plan recognises that development may be acceptable beyond the built framework of settlements, but within the wider physical confines of villages, it is considered that more than sufficient opportunities are likely to be available within the built framework of the Borough's urban areas and villages, together with those sites identified in policy H1 to meet the Joint Structure Plan requirement."
"Outside the built framework of settlements, planning permission will not be granted for housing development unless the proposals are in the form of one or more of the following:-
1. extensions to existing buildings, provided this would not result in a significant change to the scale or character of the dwelling and its surroundings
2. replacement of existing dwellings, providing that the number of dwelling units is not increased
3. new development which can be shown to be necessary for the operation of a rural based activity and where countryside location is essential."
The Planning History
The Planning Application
"Whilst the approval of this application would represent a departure from the Local Plan, the other material considerations outlined above are significant and in this instance outweigh the presumption against residential development on private gardens and provide justification to support the proposal. Despite being a greenfield site the development is acceptable in terms of scale and character, makes efficient use of the land, a satisfactory access to the highway can be provided, there is limited impact on the amenity of the area and there is no significant adverse impact on landscape features. As a result the development should be supported."
The officer's report thus recommended approval of the proposal.
"In detail: The development complies with the provisions of the development plan for the locality and raises no unresolved issues in relation to the location of the site, privacy, amenity, sunlight/daylight, character and design, landscape or heritage features and highway safety."
"I would like to request an officer's written recommendation based on the planning submission already approved so that my adviser can consider whether we would benefit from representation in Court as Interested Parties. I have to say that I would be very reluctant to get involved with legal costs and that all I am seeking is a reasonable measure of comfort that we could use in the event of a refusal."
"Given the circumstances surrounding the application, namely the proposed claim for Judicial Review on the grounds that the decision to grant planning permission is unlawful and subject to that decision being quashed by the High Court, the application will need to be re-determined by the Council with a different case officer assigned to the application. The application would also be subject to re-consultation with the relevant consultees.
Notwithstanding the above, I can advise you as to the relevant planning considerations to be taken into account in the re-determination of the application and the likely conclusion of officers, based on the previous consultation and responses received to that consultation.
The application site lies within the built framework of Hazelwood, as defined in the adopted Amber Valley Borough Local Plan 2006. The application would therefore be considered against policy H4 of the adopted Local Plan. The application constitutes a departure to the development plan, on the basis that it does not comply with any of the criteria set out in policy H4, given that garden land is no longer classified as previously developed or brownfield land. This position is re-affirmed in the new National Planning Policy Framework (NPPF) which has replaced the previous Planning Policy Statement 3 (PPS3).
However, other material planning considerations will need to be taken into account to establish whether these would outweigh the policy presumption against development. In this respect, I would not anticipate that any re-consultation on the application would raise any further issues in relation to the relevant planning history to the site, the scale and character of the development, the impact on the highway network or the impact on existing properties, that would result in a different recommendation being reached by officers in respect of the application, i.e. that planning permission be granted, subject to appropriate conditions.
Subject to the planning permission being quashed and the timing of such a decision, the application will then be re-determined as expediently as possible. The application may be determined through delegated powers as previously, or alternatively it may be referred to the Planning Board for their determination."
That was, therefore, encouraging for Mr Wood. On the same day, he wrote to the Claimant's solicitor indicating that he would not oppose the judicial review claim.
"Your understanding in respect of the grounds on which a Judicial Review could be mounted is essentially one I would agree with and I clearly need to ensure that the Council is not put in a position where any such challenge, if made, would be successful. In this respect, the issue of whether the current application site is judged to be within or outside the built framework could arguably be seen as a matter of planning judgement, rather than a matter of law, but the key concerns on which I need to be satisfied is that whichever conclusion is reached on this issue, a decision could not then be successfully challenged on the basis that the Council had not properly set out the reasons for reaching that decision."
There was nothing in that email either to concern Mr Wood unduly.
"I can now advise as follows:
I am of the opinion that the application site relates to land which, at the time that planning permission was originally granted in May 2004 for the conversion and extension of the barn to a dwelling and the formation of an access at Mount Farm (AVA/2004/0209), was not part of the curtilage and that it appears that the land was at some point thereafter been subject to a material change of use, when it was incorporated into the garden. I have attached plans from both the 2004 application and the current application to illustrate this point.
I am of the opinion that as the material change of use referred to above has occurred in the past 10 years, it is an unlawful use and that the Council must determine the current application against the backdrop of what is the lawful use of the land.
In the light of the above, I consider that the application site is within the countryside, outside the built framework of the settlement Hazelwood, as defined in the adopted Amber Valley Borough Local Plan 2006. On this basis, the application should be determined against Policy H5 of the Local Plan and having regard to the criteria set out in the policy, that the application should be recommended for refusal."
That was expressly a provisional view, and Mr Stafford asked for any further evidence, comments or representations from Mr Wood that might alter the position, within 28 days.
"However, this information does not in Mr Wilson's opinion provide any compelling evidence that would lead me to conclude that the land in question can be classified as garden land, contrary to the position established with planning application AVA/2004/0209"
i) An email from Planning Design Practice Ltd, saying that, in 2004 when they applied for planning permission to convert and extend the Mount Farm Barn:
" the barn sat within the extended garden of Mount Farmhouse. This consisted of fruit trees, vegetable gardens, planted beds etc. The garden was not manicured but it was part of the immediate grounds attached to the house and was separate from grazing land to the east. We were not given the whole extent of the Mount Farm holding and only included that land which was clearly attached to the house. Most of our records from that time have been destroyed but in the Planning Statement submitted with the application, paragraph 5.12, reference is made to overlooking into the garden of Mount Farmhouse from the side of the barn conversion."
ii) A letter from a Mrs M A Heath, whose father had previously owned Mount Farm which was then occupied by sitting tenants. She said that the area where the barn stood:
" was part of the farm yard the small grass area below which is a garden was used by the [tenants] as a garden and orchard to grow fruit vegetables flowers they also has a chicken shed there ".
Mrs Heath attached a plan, showing the application site marked with tree symbols, as orchard.
Mr Wood also made further submissions of his own.
i) Whether the proposed development fell within Policy H4 or Policy H5. This was a binary question the development was bound to fall within either Policy H4 or Policy H5, there being no possible tertium quid. The question depended on whether the proposed development site was within or outside the built framework of the settlement, which itself depended on whether the proposed development site was lawfully garden/curtilage.
ii) Whether the development was compliant with the policy within which it was found to fall, whether that be Policy H4 or Policy H5.
iii) If it was not compliant, whether there were material considerations that outweighed that non-compliance and indicated that the application should, in any event, be approved.
"Therefore, based on the planning history in relation to the current application site and its surroundings, the current application site can reasonably be regarded as being located outside the settlement boundary and by definition within the countryside."
" [I]t is not considered that the further information submitted by the applicant provides a clear demonstration that the current application site comprises 'garden land' and that it can therefore be regarded as being located within the settlement boundary."
Therefore, the proposed development had to be considered against Policy H5, not Policy H4.
"1. The application site falls within the built framework of the settlement of Hazelwood.
2. Although the proposal does not satisfy any of the criteria set out in saved Policy H4 of the Adopted Amber Valley Borough Local Plan 2006, other material considerations are significant and are considered to outweigh the presumption against residential development on greenfield land, namely that the development is acceptable in relation to the criteria set out in saved Policy H12 of the Adopted Amber Valley Borough Local Plan 2006, in terms of scale and character, the effect on the amenities or privacy of adjoining or adjacent properties and providing satisfactory access to the highway network. The development will also contribute to meeting the overall housing requirement in the Borough."
Whilst the approval of this application would represent a departure from the Local Plan, the other material considerations are significant and in this instance outweigh the presumption against residential development on greenfield land and provide justification to support the proposal. Despite being a greenfield site the development is acceptable in terms of scale and character, the effect on amenities or privacy of adjoining or adjacent properties and providing satisfactory access to the highway network. The development will also contribute to meeting the overall housing requirement in the Borough."
Ground 1: The Board on behalf of the Council failed to comply with its statutory duty to give reasons in that it made its decision to approve the application without considering the reasons for that decision, those reasons being settled by the officers subsequently. The Board's confirmation of those reasons ex post facto did not cure that error.
Ground 2: The Board also failed to comply with its statutory duty to give reasons in that the reasons eventually given were not in any event adequate. In particular, they failed to explain the basis on which the Board determined to approve the application, contrary to the advice and recommendation of its officer's report.
Ground 3: The Board failed to comply with its duty to determine the application in accordance with the development plan unless material considerations indicate otherwise. There are two sub-grounds:
Ground 3A: The Board did not clearly determine which policy within the Local Plan was breached.
Ground 3B: The Board's approach was in any event legally wrong: having determined that the development was a departure from the development plan, they approved the application without identifying any material consideration which could properly outweigh that departure.
Ground 4: The Board failed to take into account all material considerations, by failing to take into account the housing density requirement of Policy H12 of the Local Plan (see paragraph 10 above).
Ground 7: The Board failed to take into account the highway authority's response to the application, and imposed an unenforceable condition on the permission.
Other grounds raised earlier were abandoned before me. I need not say anything further about them, except to endorse the wisdom of not pursuing them.
"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."
Section 38(6) therefore raises a presumption that planning decisions will be taken in accordance with the development plan, looked at as a whole; but that presumption is rebuttable by other material considerations.
"(i) When planning permission is granted, only summary reasons are required. The duty to give summary reasons is not to be equated with either the obligation to give full reasons for refusing permission, or the obligation imposed on the Secretary of State (or inspector acting in his behalf) to give reasons when determining a planning appeal.
(ii) However, the summary reasons must be sufficient to enable a member of the public with an interest in the lawfulness of the permission granted to understand the rationale of the decision, and to ascertain whether, in granting the permission, the decision-maker correctly interpreted relevant policies.
(iii) Whether summary reasons given are adequate will depend on the circumstances of the particular case.
(iv) An important circumstance will be whether a decision-making committee agree with the officer's report. Absent any indication to the contrary, it can usually be assumed that a committee who agree with an officer's recommendation also agree with that officer's reasoning, so that short summary reasons will be adequate. In particular, in those circumstances, the committee can be assumed to agree with the officer's analysis of relevant policies.
(v) But, where the committee disagree with the officer's recommendation, it may not be so easy to assume that they have interpreted the relevant policies in the same way as the officer, particularly where a difference in interpretation might explain the difference in the conclusions they have reached. In any event, it must be evident from the summary reasons how and why the committee have rejected the officer's advice and thus come to the conclusion to which they have come. That can, of course, be done in any form.
(vi) Therefore, whilst the standard of reasons does not, as a matter of law, change, in practice it is likely that summary reasons will have to be drafted with greater care where the committee disagree with the recommendation of the officer, to enable members of the public to understand the rationale of their decision, and to make it apparent that they have understood and properly applied relevant policies."
" [T]he statutory requirement is to give a summary of the reasons for the grant of planning permission, not a summary of the reasons for rejecting an objector's representations (even on a principal issue) or a summary of reasons for reasons."
Therefore, submitted Mr Hogan, the reasons need to state that the issues have been decided in favour of the applicant, but not why they have been found thus. The authorities are replete with exhortations not to impose too high a burden on a planning authority with regard to reasons which are, after all, only required to be "summary".
" [T]he adequacy of reasons for the grant of planning permission will depend on the circumstances of each case. The officer's report to committee will be a relevant consideration. If the officer's report recommended refusal and the members decided to grant permission, a fuller summary of reasons would be appropriate than would be the case where members had simply followed the officer's recommendation. In the latter case, a short summary may well be appropriate."
It is implicit in that passage that, where the committee do not follow the recommendation of the officer's report, then reasons more extensive than a mere "short summary" may be required.
"Article 31 does not require a summary of reasons for rejecting objections to grant of permission: Ling [at ). '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."
"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."
" [I]f it is intended to approve [an application not in accordance with the development plan], the material considerations leading to this conclusion must be clearly identified, and how these justify overriding the development plan clearly demonstrated ".
If the Planning Board make a decision contrary to the officers' recommendation (whether approval or refusal), a detailed minute of the Board's reasons shall be made and a copy placed on the application file ".
The Grounds of Claim: Introduction
"Where it is concluded that the proposal is not in accordance with the development plan, it is necessary to understand the nature and extent of the departure from the plan which the grant of consent would involve in order to consider on a proper basis whether such a departure is justified by other considerations."
"Whilst the approval of this application would represent a departure from the Local Plan, the other material considerations are significant and in this instance outweigh the presumption against residential development on greenfield land and provide justification to support the proposal."
It is clear from that that the Board found that Policy H4 (and not Policy H5) applied.
i) not treated the red-line of the original application plan as presumptively marking the limits of the garden/curtilage of the then-new house, either erroneously or on the basis that the presumption did not apply in this case for some (unspecified) reason (although it is difficult to envisage why the presumption would not apply);
ii) considered that the red-line of the original application plan included the application site (as Mrs Gee appears to have done), either erroneously or because they construed the plan differently from Mr Wilson (although on the plan that is included in the papers with this claim, such a construction is difficult to envisage);
iii) considered that the orchards (essentially discounted by the officer) were garden/curtilage;
iv) considered that the area marked on the Ordnance Survey plan as orchard was in fact not orchard but laid to garden; or
v) come to the conclusion by some other route.
In particular and vitally we cannot know from the reasons whether the Board adopted the correct legal approach. In my judgment, it simply cannot be assumed that, because the Board members had the officer's report, they adopted his analysis: one reason why they may have come to a different conclusion from the officer is that they adopted a different (and incorrect) analysis.
i) Although I am concerned with the summary reasons in the decision letter itself, the evidence of what transpired at the 17 December 2012 meeting does not assist the Council. There is a record of what various witnesses said which, except for the additional witness, appears to have been much in line with their written evidence but there is nothing about the legal approach, or whether the Board was aware of and applied the Barnett presumption, or why and on what basis the Board was satisfied that the Barnett presumption was rebutted (if, indeed, the Board considered it was rebutted). There is nothing to support the contention that they approached the issue correctly, as a matter of law.
ii) If the Board did indeed consider this issue, to have given reasons why they arrived at the conclusion they did would have been a very modest enterprise, requiring some recognition of the correct legal approach, and the basis on which (contrary to their officer's report) they considered the presumption rebutted.
iii) Although Ms Wigley, understandably, put this ground primarily on the basis that the Board's reasons were inadequate, she also submitted that the lack of reasons betrayed a likely substantive failure of the Board to grapple at all with the real issues in this case. There is force in that submission. One of the purposes of a requirement for reasons is to ensure that decision-making is disciplined. An absence of proper reasons can indicate that the decision-maker has not approached his or her task properly or lawfully. In this case, on the basis of the reasons given and the other evidence, in my judgment, it is impossible to be satisfied that the Board did properly approach this crucial issue.
i) Delay. Briefly, the decision notice was dated 20 December 2012, although the Claimant knew what the decision would be from the meeting he attended on 17 December. The pre-action protocol letter was sent on 15 February 2013, to which the Council responded promptly. The claim was filed on 18 March 2013, although not actually issued by the Court until 26 March 2103. The claim was therefore inside the three month period but only just. Mr Hogan submitted that it was not brought reasonably promptly.
ii) The lack of prejudice. There is no evidence that the Claimant would suffer any harm, in planning terms, from this development. He might not wish to have another house, effectively, at the back of Mount Farm; but there is no evidence of harm in noise, visual or any other terms.
iii) The availability of other relief. It would be open to the court to remit the matter back to the Board for further reasons.
iv) Likely result of a redetermination. This application has been approved twice. If it goes back to the Council for redetermination, then, because of the revocation of requirement of article 31(1)(a)(i) the 2010 Order to give reasons for a grant of permission, the Council will have no statutory obligation to give reasons for approving the application. Mr Hogan submitted that it is very likely that the Board will approve the application, without reasons.
"Such a remedy serves the dual purpose of encouraging rigorous decision-making and avoiding the risk associated with 'after the event' reconstruction of reasons." (ibid).
i) I sympathise with Mr & Mrs Wood in respect of the uncertainty that the two judicial reviews in respect of their application for planning permission must inevitably have caused. However, whilst there is no evidence that the Claimant has suffered any prejudice, there is no evidence that Mr & Mrs Wood would suffer any specific prejudice by their application for planning permission being returned to the Council for lawful redetermination.
ii) A court may be persuaded not to quash a decision because the breach of obligation was immaterial, i.e. the decision would undoubtedly have been the same, even if the breach had not occurred. However, in this case, I cannot be certain of that. In this case, I have found that, on the basis of the reasons given and the other evidence, it is impossible to be satisfied that the Board did properly approach the crucial issue concerning the designation of the application site as within the settlement. The Board may well have adopted an incorrect and unlawful approach. It is likewise impossible to say what the Board's decision would be if the members approached the issue correctly. That is the more so as I understand that further evidence may now be available as to the historic use of the land.
iii) As I recently emphasised in R (Hampton Bishop Parish Council) v Herefordshire Council  EWHC 3947 (Admin) and last week in R (TRASHorfield Limited v Bristol City Council  EWHC 757 (Admin), it is important that challenges to planning decisions are brought promptly. As I said in the Hereford case (at ):
" [T]he reason why public law claims must be brought promptly is not focused on private interests, but rather in the public interest of having development that the relevant democratically-elected decision-makers have determined is itself in the public interest."
However, in this case, the claim was brought within three months, I cannot say that the Claimant failed to act with reasonable speed and there is no evidence that Mr & Mrs Wood have suffered any prejudice as a result of any delay. In this case, the claim that otherwise appropriate relief should be withheld because of delay by the Claimant is weak.
" If minded to approve it is a departure. Therefore are there material considerations to outweigh?"
"Cox: if we approve delegate conditions use previous ones as basis for these.
It is in character with surroundings
Lyttle: original application & this so similar cannot support a refusal"
It is then recorded that the vote was taken, and was unanimous to approve.
- scale and character (H12)
- the effect on the amenities or privacy of adjoining or adjacent properties
- providing access to the highway network
- the development will also contribute to meeting the overall housing requirement in the Borough.
i) Insofar as this is a challenge to the Board's reasons, I deal with that (insofar as I need to do so) in respect of Ground 1.
ii) Although the mere fact that there is compliance with other policies may not be sufficient to outweigh a departure from another significant policy, factors that may be incorporated into those other policies e.g. good design may, in themselves, be a material consideration which planning decision makers are entitled to give appropriate weight.
iii) Given the absence of other policy breaches and such specific harm, then at the very least less will be required to outweigh the departure from Policy H4.
iv) In common with many authorities, the Council have a substantial and chronic discrepancy between housing requirements and housing supply and, in considering any application for housing development, the Board would be well aware of that shortfall. If, as I doubt, reminder were needed, the officer's report reminded the Board that a core planning principle of the NPPF is: "Proactively drive and support sustainable economic development to deliver homes " (paragraph A2).
v) The need for more housing was clearly a material consideration. The weight given to that consideration was of course entirely a matter for the Board.
Conclusion and Disposal