R (on the application of RAYMOND COOPER) (Claimant) v ASHFORD BOROUGH COUNCIL (Defendant) & MICHAEL MAY (Interested Party) (2016)

The claimant applied for judicial review of a decision of the defendant local authority to grant planning permission to the interested party landowner for four gypsy pitches, associated development and a goat barn.

The site was on a private road in open countryside which served some businesses, 13 dwellings and some authorised gypsy and traveller sites. It was within a landscape character area covered by a blanket tree preservation order and designated as ancient woodland, and was on the edge of a local wildlife site. It consisted of a thin strip of land mostly to the rear of an existing authorised gypsy and traveller site with three permitted pitches. The parts of the site proposed for development consisted of an existing hard-surfaced track and lawful hard-surfaced and tarmacked areas. The planning officer wrote an assessment noting that the development would result in limited harm to the visual amenity of the area, and would harm wildlife and prevent the re-establishment of flora and fauna, but on balance should be permitted as it would contribute towards meeting the need for gypsy sites. Under delegated powers the local authority’s development control manager granted permission, but gave no reasoned decision in doing so.

The claimant submitted that the local authority had failed (1) to apply the Planning and Compulsory Purchase Act 2004 s.38(6), in that it did not reach a judgment on whether the proposed development accorded with a number of key plan policies or with the development plan as a whole; or that there were flawed or no adequate reasons on that point; (2) to distinguish the proposed development from an earlier refused proposal for eight caravans on the site and failed to consider the importance of consistency in planning decisions; (3) to consider that the grant of permission would set a precedent for further gypsy and traveller sites causing cumulative harm to the woodland; (4) to consider whether a condition limiting occupation of the site to gypsies and travellers would achieve its stated objective and whether a personal permission should have been imposed instead.

HELD: (1) In dealing with any planning application an authority was required to have regard to the provisions of the development plan so far as material: see the Town and Country Planning Act 1990 s.70(2). The assessment had identified all the relevant development plan policies, but reference alone to them was insufficient. It also had to interpret the policies correctly and, given the duty under s.38(6), it also had to determine (a) whether the individual material policies supported or counted against the proposed development or whether it was consistent with them, and (b) whether it was in accordance with the development plan as a whole. The assessment had not done so (see paras 26-27 of judgment). However, a planning authority was not under any statutory obligation to give reasons for the grant of planning permission. The local authority had not filed any written evidence from the development control manager, but did file an acknowledgement of service incorporating summary grounds. Such summary grounds constituted a statement of case for the purpose of CPR r.2.3(1), and the local authority was entitled to rely on them, R. (on the application of Corner House Research) v Director of the Serious Fraud Office [2008] EWHC 246 (Admin), [2008] C.P. Rep. 20 applied. If the summary grounds contained what could be said to constitute “written evidence”, then it would have been served under CPR r.54.8 and be admissible by virtue of r.54.16(2)(a). The local authority could not resile from facts stated in its summary grounds without providing written evidence that they were incorrect. Where there were issues of fact about what conclusions an authority might have reached and why, it might well be unsatisfactory for it to rely on summary grounds. It was preferable for any relevant facts to be verified in a witness statement by a person who could do so from their own knowledge. Moreover, summary grounds for opposing a claim were documents primarily for setting out arguments. They would not always clearly distinguish between facts and arguments, as they should, R. (on the application of Das) v Secretary of State for the Home Department [2013] EWHC 682 (Admin) applied (paras 31-33). The grant of permission was not consistent with a local plan policy that prohibited developments that would damage important woodlands. Given the summary grounds and the absence of a witness statement, the only conclusion was either that the development control manager had failed to consider that policy or had reached an irrational conclusion that the proposed development was consistent with it (para.34). On the basis of the summary grounds, the decision was also in error in relation to a policy that provided that sites for gypsies and travellers would be identified in a site allocation development plan document (para.36). Those two errors also flawed the determination, which the summary grounds stated was made, that the proposal complied with the development plan as a whole (para.41). The court was not satisfied that it was highly likely that the development control officer would still have treated the significant weight that was given to the need for further gypsy and traveller sites as outweighing the objections to the proposed development once the policy considerations were properly taken into account, so the grant of permission was quashed (paras 104-109).

(2) There was no obligation on the local authority to provide reasons for distinguishing the proposal from the earlier refused proposal, but even if there was the reasons for distinguishing them were evident from the assessment. The claimant’s submission regarding consistency with the earlier refusal, based on the notice of that refusal, was hopeless (paras 45, 53).

(3) In the circumstances, any judgment that the prospect of future applications for the development of land in the area designated as ancient woodland was a “mere fear or generalised concern” was not one a reasonable planning authority could have reached, Poundstretcher v Secretary of State for the Environment [1988] 3 P.L.R. 69 followed. The correct test was whether the prospect of the grant of permission setting a precedent for future cumulatively harmful development was a consideration that no reasonable planning authority would have failed to take into account, Findlay, Re [1985] A.C. 318 followed, Bolton MBC v Secretary of State for the Environment (1991) 61 P. & C.R. 343 and Derbyshire Dales DC v Secretary of State for Communities and Local Government [2009] EWHC 1729 (Admin), [2010] 1 P. & C.R. 19 considered (paras 59-89). The claimant had not met that test (para.91-93).

(4) The condition limiting occupation of the site to gypsies and travellers was capable of enforcement, R. (on the application of Helford Village Development Co Ltd) v Kerrier DC [2009] EWHC 400 (Admin) distinguished (paras 95-99).

Application granted

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s