Terry, R (On the Application Of) v Tonbridge & Malling Borough Council

In a planning judicial review, a decision-maker need not expressly mention every relevant development-plan policy if the decision documents show that the policy and its subject matter were properly considered. The court should not infer legal error from silence where the policy was plainly in mind.

An assessment of residential amenity and overlooking is ordinarily a matter of planning judgment. The High Court will not revisit that judgment unless it is irrational or discloses an arguable error of law. A renewed application for permission will not normally permit substantially new grounds to be introduced without the court’s leave and a proper explanation for the delay.

The claimant sought permission to challenge the respondent local planning authority’s grant of planning permission for the conversion of a water tower and replacement of commercial buildings with four dwellings and a garage at Beechin Wood Farm.

Permission had previously been refused by a Deputy High Court Judge. The claimant renewed the application, alleging that the officer had failed to assess the proposal against the countryside protection policy in the authority’s Core Strategy and had misunderstood the relationship between the proposed development and neighbouring dwellings.

The claimant also sought to raise further grounds at the renewed hearing. The central issues were whether the officer’s report disclosed an arguable error of law, whether the overlooking assessment was irrational, and whether the additional grounds should be admitted.

1. Renewed permission application refused. Neither of the original grounds disclosed an arguable error of law.
2. The requirement in Planning and Compulsory Purchase Act 2004, s.38(6), to determine applications in accordance with the development plan unless material considerations indicate otherwise did not require the officer to mention Policy CP14 expressly. Policy CP14 was a countryside protection policy, and the report showed that the officer had understood the site to be outside the settlement boundary. The officer had also considered the more stringent green belt policy and concluded that the proposal would not harm the purposes of the green belt. In those circumstances, the court should not infer that CP14 had been overlooked. The approach identified by the Supreme Court in Hopkins was applied.
3. The description of Plot 2 as the nearest plot to the neighbouring dwelling was factually inaccurate. However, the officer’s report and witness statement explained the assessment of overlooking, including the relationship between the cottage window and the proposed dwelling. The issue was a matter of planning judgment. Applying the principle stated in R (on the application Newsmith Stainless Steel Ltd.) v Secretary of State for Environment, Transport & the Regions, the threshold for irrationality in such a matter was high. No arguable legal basis for interfering with the assessment was shown.
4. The additional grounds were introduced late without an application for leave or an explanation justifying their admission. They would not have been admitted. In any event, they principally sought to challenge planning judgments and disclosed no arguable error of law.

Permission had previously been refused by Mr John Howell QC, sitting as a Deputy High Court Judge. The claimant renewed the application before the High Court, which refused permission.