Newey, R (On the Application Of) v South Hams District Council

A delegated decision approving details required by a planning condition engages the duty to give reasons where the decision potentially affects an individual’s property rights. Rights may be affected without an established breach; engagement of the rights is sufficient.

A condition directed at preventing harm during construction should be read sensibly. Where some harm is inevitable, the relevant question is whether the harm is unacceptable. The choice of construction method is ordinarily a matter of planning judgment. Ground conditions and land instability are material considerations where construction may affect site stability.

The claimant owned a holiday property adjoining land for which interested parties had planning permission to erect a dwelling. The Council approved a Construction Method Statement under a planning condition and later varied another condition so that structural engineering details were required only before construction above slab level.

The claimant challenged both decisions. She alleged failures to record reasons for the delegated approval, to consider the purpose of the construction condition and resulting residential amenity harm, and to consider ground instability following the collapse of a retaining wall. The central issues were whether the statutory duty to give reasons applied and whether the Council had considered legally material matters.

1. Construction Method Statement approval. Regulation 7 of the Openness of Local Government Bodies Regulations 2014 required a written record where the delegated decision affected an individual’s rights. The claimant’s common law property rights, including quiet enjoyment and prescribed light, were engaged by the proposed scaffolding, conveyors, noise, dust and obstruction. It was unnecessary to establish an actual breach. Rights are affected when activity potentially interferes with their enjoyment. The Council therefore acted unlawfully by failing to record reasons, and the approval decision had to be quashed and remitted.
2. Licence or permission alternative. Approval of reserved matters is part of the grant of planning permission under sections 70 and 92 of the Town and Country Planning Act 1990. Discharge of a condition is not itself a species of planning permission or a licence; it controls how an existing permission is implemented.
3. Construction condition. Applying the approach in Trump v Scottish Ministers [2015] UKSC 74, the condition had to be read in context and with common sense. Because some harm to adjoining occupiers was inevitable, a qualification such as unacceptable had to be understood before harm. The officer was entitled to select an appropriate construction method as a matter of planning judgment. Ground 2 therefore failed.
4. Ground conditions. Paragraph 121 of the National Planning Policy Framework was material. Whether the site was suitable for its proposed use depended partly on whether it might collapse when works were carried out. The prior sudden collapse of the retaining wall made it incumbent on the officer to draw the decision-maker’s attention to the risk and the policy. Failure to do so undermined the variation decision.
5. The judicial review was allowed. The Construction Method Statement approval was declared unlawful. The Second Variation Permission was quashed, and the Council was directed to redetermine the relevant applications.