Fraser, R (On the Application Of) v Shropshire Council

Planning policies prescribing open-space standards must be read as a whole and applied with appropriate planning judgment. A quantitative standard may be an important consideration without operating as an inflexible rule that determines policy compliance in every case. For larger developments, a preference for a single functional recreational area does not invariably prevent other usable areas from being counted.

A local planning authority may conclude that a proposal complies with the development plan overall despite conflict with one policy, and may grant permission despite development-plan conflict where material considerations justify that result. The court reviews the legality of the decision, not the planning merits. The public sector equality duty remains engaged where a decision affects older or disabled people, but is a duty to have due regard rather than a duty to achieve a particular outcome.

The claimant brought two judicial review claims challenging planning permissions granted by Shropshire Council for extra-care residential development, a health centre and associated facilities at Pauls Moss, Whitchurch. The first permission followed an earlier refusal of a substantially redesigned scheme. The second permission authorised the same development after the first permission became subject to judicial review.

The claimant alleged misinterpretation of Policy MD2, inconsistency with the earlier refusal, failure to consider material matters, irrationality, age or disability discrimination, and breach of the public sector equality duty under section 149 of the Equality Act 2010. The central issues were whether the open-space provision complied with the development plan and whether the Council had lawfully considered equality implications.

1. JR2: Permission to bring the claim was granted on all five grounds, but the claim was dismissed. The Council was entitled to conclude that the proposed open space was acceptable despite acknowledging a quantitative shortfall against Policy MD2.
2. Policy MD2 was a criteria-based policy concerning sustainable design. Its requirement to consider landscaping and open space holistically, including at least 30 square metres per person and functional recreational space for larger developments, required planning judgment. The standards were important, but they were not rigid rules that automatically determined non-compliance. The reference to a single recreational area did not prevent a flexible assessment of the particular scheme.
3. The Council was entitled to determine that any conflict with Policy MD2 was minor and did not create conflict with the development plan as a whole. Alternatively, applying section 38(6) of the Planning and Compulsory Purchase Act 2004 and section 70(2) of the Town and Country Planning Act 1990, it was entitled to conclude that material benefits outweighed any conflict.
4. The earlier refusal did not require the later applications to be determined identically. The schemes differed materially, particularly because Pauls Moss House was retained and a substantially larger public open-space area was introduced. The Council was entitled to make a fresh planning judgment.
5. The references in the officer reports to the former circular Hub were inaccurate but inconsequential. The plans, report as a whole and presentation materials made the redesigned scheme clear. The court would not substitute its own view of the quality or accessibility of the open space, and no irrationality or material misleading of the committee was established.
6. The discrimination claim failed because the Council considered the open-space provision acceptable irrespective of the intended residents, while also considering its particular benefits for extra-care residents. The public sector equality duty was engaged, despite the Council’s contrary submission, but it was discharged. The members were directed to the statutory considerations and the reports addressed integration, participation, disadvantage and the needs of older or disabled people.
7. JR1: The challenge to the earlier permission was dismissed. The fresh and lawful determination of the later application meant that any error in the earlier decision could not have substantially altered the outcome. Relief was refused under section 31(2A) of the Senior Courts Act 1981.

The judgment concerned two first-instance judicial review claims. JR1 challenged the permission dated 18 October 2019. JR2 challenged the later permission dated 28 May 2020. The High Court granted permission on the relevant grounds but dismissed both claims.