Rogers, R (on the application of) v Wycombe District Council & Anor

In judicial review of a planning decision, the court reviews legality, rationality, relevant considerations and procedural fairness, but does not re-evaluate planning merits. The interpretation of development-plan policy is a legal issue; the application of policy and the weight given to material considerations are matters of planning judgment.

An officer’s report must be read fairly as a whole and against the knowledge of its intended planning readership. It must not significantly mislead the decision-maker. A delegated decision-maker must nevertheless give proper, adequate and intelligible reasons on substantial controversial issues. Even where reasons are inadequate, relief must be refused under section 31(2A) of the Senior Courts Act 1981 if it is highly likely that the outcome would not have been substantially different.

The claimant challenged the Council’s grant of planning permission for a dwelling at Sheron, Spurgrove Lane, within the Chilterns Area of Outstanding Natural Beauty and an area of open countryside. He argued that the development was not permissible infilling, that a section 52 agreement restricting additional residential development was treated as immaterial, and that an earlier planning appeal decision had been disregarded.

He also sought permission to challenge the Council’s subsequent deed of release of the section 52 agreement. That challenge depended on the planning permission being quashed. The central issues were whether the Council had lawfully interpreted and applied Policy C10, considered the agreement and previous decision, given adequate reasons, and whether relief should be granted for the reasons deficiency.

1. Planning judgment and Policy C10. The challenge to the conclusion that the proposal was limited infilling within an identifiable ribbon of development failed. The meaning of planning policy is a matter of law, but applying it to the site and weighing planning considerations is for the decision-maker unless irrational or perverse. The officer’s assessment of siting, gaps, character, appearance and the AONB showed that the relevant policy restriction on closing gaps or enclosing open areas had been considered. The report was adequate when read as a whole.
2. Section 52 agreement. An agreement made under section 52 of the Town and Country Planning Act 1971 was capable of being a material planning consideration. The report did consider it, although it did not explain why permission was granted despite the restriction. The report adequately informed the expert delegated decision-maker of the issue, but it did not itself provide the proper, adequate and intelligible reasons required of the decision-maker on that substantial point.
3. Earlier planning decision. A previous planning decision is material where it is sufficiently closely related or analogous. If an indistinguishable earlier decision is departed from, reasons for departure are ordinarily required. The earlier decision concerning extensions and a garage at a different property was not sufficiently analogous to the proposed new dwelling and therefore did not have to be addressed separately.
4. Relief. The later witness statement could not be used to repair the deficient reasons when deciding liability. It could be considered on relief. The evidence established that the outcome would have been highly likely to remain the same. Section 31(2A) of the Senior Courts Act 1981 therefore required refusal of relief. Dover District Council v CPRE Kent [2017] UKSC 79 was distinguishable and did not establish that inadequate reasons invariably require quashing.
5. JR2 and costs. Permission to apply for judicial review in JR2 was refused because it depended on quashing the planning permission. The defendant was awarded its reasonable costs of the rolled-up permission hearing.

This was a first-instance judicial review decision. Permission for JR1 was granted in part by a Deputy High Court Judge. Permission for JR2 was refused on the papers and the renewed application was heard with JR1 as a rolled-up hearing.