Sienkiewicz v South Somerset District Council & Ors

Under Planning and Compulsory Purchase Act 2004, s 38(6), a planning authority must first decide whether a proposal accords with the development plan read as a whole. The weight given to an inconsistent development-plan policy, in the light of the National Planning Policy Framework, cannot determine whether the conflict exists. The Framework is a material consideration relevant at the later stage of deciding whether material considerations indicate a different determination.

A planning authority need not give reasons for departing from every earlier planning decision. A duty to explain departure arises where the earlier decision is legally indistinguishable. In assessing a Schedule 2 development for environmental effects, the question concerns the effects of the proposed change or extension, including its effect on the use or impacts of existing development, rather than the effects of already authorised development considered alone.

The claimant challenged the Council’s renewed grant of planning permission for a building for B1, B2 and B8 uses at the former Lopen Nursery site. An earlier permission for the same application had been quashed by Lewis J on the ground that a condition restricting occupation to Probiotics International Ltd was invalid; other challenges, including the environmental-impact-assessment challenge, had failed.

The renewed decision was challenged on grounds concerning the development plan, consistency with other planning decisions, consultation with the Secretary of State, conditions, environmental assessment and delegation of the screening function. The central issues were whether the Council had lawfully applied s 38(6), whether consultation was required under the 2009 Direction, and whether the screening opinion was lawful.

1. The application was dismissed and relief refused. Permission to argue grounds 5 and 6 was refused.
2. The Council had unlawfully confused two stages under s 38(6). It treated the reduced weight of policy ME4, because of its inconsistency with paragraph 28 of the NPPF, as relevant to whether the proposal accorded with the development plan. The existence of conflict had to be assessed first. The NPPF could then be given decisive weight as a material consideration indicating a grant of permission otherwise than in accordance with the plan.
3. The Council had also failed to take into account the earlier judgment’s conclusion that the proposal did not accord with the development plan. Its reasoning did not explain how the relevant policies, particularly ME4, permitted the contrary conclusion. Those errors were nevertheless immaterial. The Council was entitled to give ME4 reduced weight and paragraph 28 decisive weight at the material-considerations stage, and the lawful analysis would have produced the same decision without omitting any relevant factor.
4. There was no general duty on a local planning authority to give reasons for distinguishing earlier planning decisions. The duty identified in North Wiltshire DC v Secretary of State for the Environment applied where the earlier decision was legally indistinguishable. The decisions relied on here concerned different development or policies and were not material inconsistencies.
5. Article 5(2) of the 2009 Direction required aggregation only of existing retail, leisure or office floorspace actually used for those purposes. It did not require the whole floorspace of buildings containing some relevant use to be aggregated. The consultation ground therefore failed.
6. The Council was not irrationally required to impose an occupancy tie to Probiotics or a condition fixing the proposed mix of uses. Conditions allowing later written approval of details were conventional and lawful. Imperative informatives remained informatives and could remind developers of obligations enforced by other bodies.
7. The proposal was Schedule 2 development, but the relevant question was whether the site as changed or extended by the new building might have significant adverse environmental effects. Existing effects, considered independently of the proposed change, were irrelevant. The Council had properly considered cumulative visual, landscape, traffic and other effects.
8. The screening function had been validly delegated. The officer’s typed name in the email constituted a signature for the Council’s delegation scheme, and the later scheme preserved the earlier delegation.