Gare, R (On the Application Of) v Babergh District Council

A planning committee may be required by the common law to give reasons where a permission is granted against officer advice, following substantial opposition, a previous refusal or quashing, and a significant departure from development-plan policy. Reasons inferred from an officer’s report and minutes must meet the ordinary standard for reasons: they must explain the decision on the principal controversial issues and disclose how legal and factual questions were resolved. The decision-maker must understand the nature and extent of any departure from the development plan before balancing material considerations against it. The interpretation of planning policy is a legal question; its application is generally a matter of planning judgment, subject to irrationality review.

Babergh District Council granted permission for six houses outside Hartest’s settlement boundary, contrary to officer advice and after an earlier permission for the same proposal had been quashed for inadequate reasons. The claimant challenged the redetermination on six grounds, including failure to give reasons, failure to address compliance with the development plan, inconsistency in the treatment of Policy CS2, misinterpretation of that policy, and misdirection concerning Policy CS11’s sequential approach.

The central issues were whether the committee’s minutes and the officer’s report adequately disclosed the reasons for granting permission, whether the committee properly addressed the statutory development-plan duty, and whether the remaining alleged errors affected the legality of the decision.

1. Grounds 1 and 2 succeeded. The combination of circumstances required a formulated statement of reasons. The permission was granted after substantial opposition, against the officers’ recommendation, following an earlier quashing for inadequate reasons, and contrary to the Council’s earlier approach to Policy CS2. The minutes did not clearly disclose the committee’s reasons.
2. Where an officer’s report and minutes are relied on together as reasons, they must satisfy the ordinary legal standard for reasons. They must enable the reader to understand why the matter was decided as it was, what conclusions were reached on the principal controversial issues, and how questions of law and fact were resolved. The minutes did not make clear whether the committee rejected the alleged conflict with Policies CS1, CS11 and CS15, or accepted that conflict but considered the benefits sufficient to outweigh the departure from Policy CS2.
3. The committee also failed clearly to identify the nature and extent of the proposal’s departure from the development plan. Without that assessment, it could not properly perform the duty under section 38(6) of the Planning and Compulsory Purchase Act 2004 and section 70 of the Town and Country Planning Act 1990.
4. Ground 3 failed. The Council was not required to explain the approach taken in a previous decision which had been quashed for inadequate reasons. Although the omission of any reference to a different decision concerning Well House was more difficult to understand, the current approach to Policy CS2 was sufficiently explained and the omission was not unlawful.
5. Grounds 4 and 5 failed. The classification of Policy CS2 as adopting a blanket approach was not itself a question of policy interpretation. The relevant question was whether the policy was consistent with the NPPF and what planning weight should be given to it. Any error in the officers’ description would not have affected the outcome, because the relationship between Policies CS2 and CS11 meant that compliance with CS11 could support a finding of exceptional circumstances.
6. Ground 6 failed. Whether the Site adjoined the built-up area for the purposes of the sequential approach under Policy CS11 was a matter of planning judgment. The report and minutes showed that the committee had considered the Site’s relationship with the settlement, and it was not irrational to treat the Site as adjoining the boundary.
7. The decision of 20 December 2018 granting planning permission was quashed. Relief was not withheld under section 31(2A) of the Senior Courts Act 1981, because it was impossible to conclude that the Council would inevitably have reached the same decision if it had directed itself lawfully.

Not an appeal. The judgment records that an earlier permission for the same proposal had been quashed by consent on 15 June 2018 after the Council conceded that it had failed to give adequate reasons.