Summary
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.
Factual background
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.
Held
- 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.
- 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.
- 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.
- 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.
- 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.
The court’s approach to earlier authorities
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Appellate history
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.
Key cases cited
26 authorities cited.
- Dover District Council v CPRE Kent [2017] UKSC 79
- R v North Norfolk District Council and another [2015] UKSC 52
- Walton v The Scottish Ministers (Scotland) [2012] UKSC 44
- Tesco Stores Limited v Dundee City Council (Scotland) [2012] UKSC 13
- South Bucks District Council and another (Respondents) v. Porter (FC) (Appellant) [2004] UKHL 33
- City of Edinburgh Council v Secretary of State for Scotland (Revival Properties Ltd v City of Edinburgh Council, Secretary of State for Scotland v Revival Properties Ltd) [1997] 1 WLR 1447
- Westminster City Council v Great Portland Estates Plc [1985] AC 661
- Lensbury Ltd, R (On the Application Of) v Richmond-Upon-Thames London Borough Council [2016] EWCA Civ 814
- Siraj, R (on the application of) v Kirklees metropolitan Council & Anor [2010] EWCA Civ 1286
- Orme & Anor v North Yorkshire County Council & Anor [2003] EWCA Civ 1860
- Ermakov, R (on the application of) v City of Westminster [1995] EWCA Civ 42
- Shasha & Ors (As Trustees of the Placement Pension Fund) v Westminster City Council [2016] EWHC 3283 (Admin)
- Pertemps Investments Ltd v Secretary of State for Communities And Local Government & Anor [2015] EWHC 2308 (Admin)
- Luton Borough Council, R (on the application of) v Central Bedfordshire Council & Ors [2014] EWHC 4325 (Admin)
- Trashorfield Ltd, R (on the application of) v Bristol City Council & Ors [2014] EWHC 757 (Admin)
- Timmins & Anor v Gedling Borough Council [2014] EWHC 654 (Admin)
- Zurich Assurance Ltd (t/a Threadneedle Property Investments), R (on the application of) v North Lincolnshire Council & Anor [2012] EWHC 3708 (Admin)
- Maxwell, R (on the application of) v Wiltshire Council [2011] EWHC 1840 (Admin)
- Stimpson, R (on the application of) v First Secretary of State [2003] EWHC 1591 (Admin)
- Newsmith Stainless Ltd v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 74 (Admin)
- R v Mendip District Council, Ex p Fabre (2000) 80 P & CR 500
- Oxton Farms, Samuel Smiths Old Brewery (Tadcaster) v Selby District Council (18 April 1997) 1997 WL 1106106
- R. v Secretary of State for the Environment, ex parte Baber [1996] JPL 1034
- North Wiltshire District Council v Secretary of State for the Environment (1993) 65 P & CR 137
- Clarke Homes Ltd v Secretary of State for the Environment (1993) 66 P & CR 263
- Seddon Properties v Secretary of State for the Environment (1981) 42 P & CR 26
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Cases citing this case
4 later cases · 2 positive · 1 neutral · 1 caution
Most senior citing decisions:
- Save North St Albans Green Belt (R on the application of) & Ors. v St Albans City and District Council [2022] EWHC 2087 (Admin) considered
- TV HARRISON CIC v LEEDS CITY COUNCIL [2022] EWHC 1675 (Admin) followed
- Gare, R (On the Application Of) v Babergh District Council [2019] EWHC 2041 (Admin) followed
- Broad, R (On the Application Of) v Sanctuary Group [2019] EWHC 628 (Admin)
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