Anthony Ward v Torridge District Council

In assessing a planning application, a claimed fall-back position must involve both a lawful ability to undertake the alternative development and a real prospect that it would occur if permission were refused. The decision-maker must then compare the planning consequences of the fall-back with those of the proposed development. A theoretical possibility is insufficient.

Planning officers’ reports should be read benevolently, but that does not permit the court to supply an essential stage of reasoning which the report omits. Where a statutory consultee identifies methodological requirements and cumulative effects, the decision-maker must address those matters and give cogent reasons for departing from the expert advice.

The claimant sought judicial review of the defendant local planning authority’s delegated grant of retrospective planning permission for alterations to agricultural buildings and the creation of a concrete yard at a neighbouring dairy farm.

Three grounds were advanced: the authority wrongly treated continued dairy use without the unauthorised works as a fall-back position; it failed to give appropriate weight to Natural England’s objection concerning nearby Sites of Special Scientific Interest; and it failed to obtain sufficient information about odour impacts.

1. Ground 1 succeeded. The authority was entitled to consider the main application separately from related applications, but it had to consider not merely what could lawfully be done without permission, but whether there was a real prospect that the interested party would in practice continue the dairy operation in that form. The planning officer’s report addressed the former question but did not address the latter. The available evidence, including the earlier description of the unauthorised works as fundamental to the dairy operation and the absence of any alternative proposal, pointed strongly against that fall-back.
2. The principles in R (Mansell) v Tonbridge and Malling BC and the analysis collected in R (Widdington Parish Council) v Uttlesford DC required consideration of lawful ability, real prospect, the appropriate weight of the fall-back, and comparison of its planning implications with those of the proposed development. The report could not be saved by reading “could” as “would” where it omitted the real-prospect assessment.
3. Ground 2 also succeeded independently. Natural England’s advice required a detailed assessment using a 2019 baseline, before the dairy use began, and an in-combination assessment including the slurry lagoon and related applications. The planning officer failed to address the 2019 baseline and took an impermissibly narrow view of the application’s environmental implications. The authority therefore lacked cogent reasons for departing from Natural England’s advice.
4. Ground 3 was not independently established. If the existing dairy operation had properly been treated as the baseline, the authority could reasonably have concluded that a quantitative odour assessment was unnecessary, since the proposed management measures would represent betterment over the status quo. This issue therefore added nothing to the result.

The claim for judicial review succeeded and the planning permission was quashed.