Tate, R (on the application of) v Leffers-Smith

Whether development is limited infilling in a village for paragraph 89 of the National Planning Policy Framework is ordinarily a matter of fact and planning judgment. The decision-maker must consider the development’s nature and size, the site’s location, and its relationship to adjoining and nearby development. A local authority may reach a different conclusion from an earlier appeal inspector, but where that decision is material and the issue is critical, it must acknowledge the departure and give reasons, even if brief. Failure to do so is an error of law and may substantially prejudice an objector where the reasons leave doubt whether the decision was lawfully made.

Northumberland County Council granted outline planning permission for a dwelling in Tranwell Woods, within the Green Belt. Dr Tate, an objector, challenged the grant by judicial review. The Administrative Court, Planning Court, allowed the claim and quashed the permission, holding that reasons should have been given for treating the proposal as limited infilling, particularly because an inspector had reached the contrary view in a 2009 appeal: [2017] EWHC 665 (Admin).

The council appealed on the sole question whether failure to explain its different conclusion on limited infilling was an error of law.

1. Appeal dismissed. The order of the Administrative Court quashing the planning permission stood. Lord Justice Lindblom gave the leading judgment, and Lord Justice Peter Jackson agreed.
2. Whether a proposal is limited infilling in a village under paragraph 89 of the National Planning Policy Framework is a question of fact and planning judgment. There is no definition in the policy. The decision-maker must assess the nature and size of the development, the location of the site, and its relationship to existing development adjoining or nearby. The court should not substitute its own planning judgment. This approach was consistent with Wood v Secretary of State for Communities and Local Government [2015] EWCA Civ 195.
3. Previous appeal decisions can be material considerations because consistency in planning decision-making is important. The decision-maker is not bound to reach the same conclusion, but must consider the earlier decision and explain any departure where the cases are materially alike and the earlier decision concerns a critical aspect of the proposal. The principle in North Wiltshire District Council v Secretary of State for the Environment (1993) 65 P. & C.R. 137 applied.
4. The planning officer and committee had the earlier decision before them but did not confront the inspector’s approach or explain why the proposal was limited infilling in 2016 when it had not been infilling in 2009. Reading officers’ reports benevolently, as required by Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314, did not cure that omission. The failure was an error of law.
5. The deficiency caused substantial prejudice because it left Dr Tate and the public without an explanation and required the court to speculate about the result of lawful reconsideration. The principles concerning fairness and substantial prejudice in R. (on the application of CPRE Kent) v Dover District Council [2018] 1 W.L.R. 108 and Save Britain’s Heritage v Number 1 Poultry Ltd [1991] 1 W.L.R. 153 supported quashing the permission.

• Court of Appeal (Civil Division) dismissed Northumberland County Council’s appeal against the order of the Administrative Court: [2018] EWCA Civ 1519.
• Administrative Court, Planning Court allowed Dr Tate’s judicial review claim and quashed the council’s grant of outline planning permission: [2017] EWHC 665 (Admin).