Potter, R (On the Application Of) v Amber Valley Borough Council

Planning authorities must determine applications in accordance with the development plan unless material considerations indicate otherwise. The weight given to material considerations is a matter of planning judgment, subject to rationality.

Where a committee grants permission contrary to its officer’s recommendation, summary reasons may need to be fuller than a bare statement of the outcome. They must enable an interested member of the public to understand whether the committee correctly interpreted and applied the relevant policies and material considerations, and why it rejected the officer’s analysis on a crucial issue.

Where inadequate reasons make it impossible to know whether the decision-maker adopted a lawful approach, the usual remedy is to quash the permission and remit the application for redetermination.

The claimant sought judicial review of the defendant local planning authority’s grant of permission for a new house on land adjoining existing dwellings owned by the interested parties.

The principal dispute concerned whether the application land formed part of the lawful garden or curtilage of an existing dwelling. That classification determined whether saved Policy H4 or Policy H5 of the Amber Valley Local Plan 2006 applied. The planning officer concluded that the land lay outside the settlement and recommended refusal. The planning committee granted permission under Policy H4, relying on other material considerations, but its reasons did not explain why it rejected the officer’s analysis or how it dealt with the presumption arising from the original planning plan.

The claimant challenged the adequacy of the reasons and the committee’s treatment of the development plan and material considerations.

1. Outcome. The judicial review was allowed. The grant of planning permission dated 20 December 2012 was quashed and the application was remitted to the Council for redetermination.
2. Development plan. Under section 38(6) of the Planning and Compulsory Purchase Act 2004, read with section 70(2) of the Town and Country Planning Act 1990, the application had to be determined in accordance with the development plan unless material considerations indicated otherwise. The weight given to those considerations was for the committee, subject to rationality.
3. Reasons. Under article 31(1)(a)(i) of the Town and Country Planning (Development Management Order) (England) Order 2010, only summary reasons were required. However, the reasons had to enable an interested member of the public to understand the rationale of the decision and whether the committee correctly interpreted and applied relevant policies. Where the committee followed the officer’s recommendation, the officer’s reasoning could ordinarily be taken as adopted. Where it departed from that recommendation, no such assumption was available and fuller reasons might be required.
4. Application. The officer had correctly identified the legal significance of the red-line boundary on the original application plan and the rebuttable presumption that it marked the curtilage of the new dwelling, applying Barnett v Secretary of State for Communities and Local Government [2008] EWHC 1601 (Admin). The committee’s reasons stated that Policy H4 applied but did not explain how it concluded that the land was garden or curtilage, why the presumption was rebutted, or why it rejected the officer’s contrary analysis. It was therefore impossible to know whether the committee had adopted a lawful approach.
5. Relief and other grounds. Inadequate reasons justified quashing the permission. The court could not be sure that the same decision would inevitably have been reached lawfully. The challenges concerning the committee’s identification of the applicable policy and Policy H12’s density requirement were not made out. The court did not need to determine separately whether the reasons had been formulated ex post facto or whether the access condition was unenforceable.