Cooper, R (on the application of) v Ashford Borough Council & Anor

When determining a planning application, a local planning authority must correctly interpret the material development-plan policies, decide whether the proposal accords with each relevant policy, and determine whether it accords with the development plan as a whole. A policy requiring refusal where development would damage important woodland cannot be treated as satisfied merely because no trees would be lost. Supporting text is relevant to interpreting a policy, but is not itself ordinarily a policy. A consideration which legislation permits, but does not require, the authority to take into account must be considered unless no reasonable authority would have failed to do so. The applicable test is Wednesbury legality, not whether the court considers that the decision might have been different. At relief stage, the court must refuse relief only where it is highly likely that the outcome would not have been substantially different.

The claimant sought judicial review of Ashford Borough Council’s delegated decision to grant conditional planning permission for four gypsy and traveller pitches, associated development and a goat barn at Milee, near Shadoxhurst. The site was in open countryside, ancient woodland and a local wildlife site.

The challenge alleged failures to apply section 38(6) of the Planning and Compulsory Purchase Act 2004, distinguish an earlier refusal for a larger proposal, consider precedent and cumulative harm, and assess the enforceability of an occupancy condition. The central issues were whether the decision-maker had lawfully assessed the development plan and whether the identified errors required the permission to be quashed.

1. Ground 1 succeeded. Section 38(6) of the Planning and Compulsory Purchase Act 2004 required the authority, as a general rule, to determine whether the proposal was consistent with each material policy and whether it accorded with the development plan as a whole. Listing relevant policies was insufficient. The assessment did neither.
2. Policy EN32 required refusal of development proposals damaging important trees or woodlands. The assessment recognised that intensified use would have a negative impact on the ancient woodland. The decision-maker therefore could not rationally treat the proposal as consistent with EN32 merely because it involved no loss of trees or damage to roots. The proposal also did not comply with policy CS14. That policy contemplated future allocation of traveller sites in a development plan document; it did not itself support an unallocated site. Paragraph 10.23 of the supporting text could not be treated as an additional policy permitting need to be considered as part of conformity with the development plan.
3. The court explained that the possible precedent effect of permission for development on other sites could be a material consideration in law. Whether it was material on the facts, and what weight it deserved, were matters of planning judgment. The omission of a legally permissible consideration invalidated the decision only if no reasonable planning authority would have failed to take it into account. That test followed In re Findlay and was not displaced by the alternative tests expressed in Bolton, Kides and Watson. Ground 3 nevertheless failed because the claimant had not shown that no reasonable authority would have omitted the alleged cumulative precedent issue.
4. The earlier refusal did not require a different result. The later proposal was materially smaller and confined to existing hardstanding. The assessment adequately distinguished it on its planning merits. The alleged failure to consider the importance of consistency therefore did not establish legal error.
5. Condition 2, restricting occupation to gypsies and travellers, was sufficiently certain and enforceable. The possibility that compliance might require factual investigation did not make it unreasonable. A personal permission was not required because the permission addressed the general need for traveller sites.
6. At the relief stage, section 31(2A) of the Senior Courts Act 1981 required refusal of relief only if it appeared highly likely that the outcome would not have been substantially different without the unlawful conduct. The court was not satisfied that permission would highly likely have been granted after the development-plan errors were corrected. The permission was quashed.

First-instance judicial review decision. The judgment states that permission to bring the claim had previously been granted by Lang J.