Smech Properties v Runnymede Borough Council

LORD JUSTICE LEWISON: This is a renewed application for permission to appeal against the refusal by Patterson J to quash a planning permission granted by Runnymede Borough Council for a mixed use development in the green belt.

There are three substantive grounds of appeal. The first is that having decided that there had been a material misdirection in the Officer's Report placed before the Planning Committee, the judge was wrong to exercise her discretion to refuse to quash the planning permission. The second ground is that the council were wrong to follow their Officer's advice that alternative sites were not a material consideration. The third ground, related to the second, is that the matter should have gone back to the council in the light of the Inspector's Report on the Local Plan Core Strategy.

The error which the judge identified in the Planning Officer's Report was to say that the residential component of this development would enable the council to meet its five-year housing land supply. It was undoubtedly something which the officer stressed in the report to the council and the Officer was wrong either because on the approach which the Officer adopted the housing supply was already met, or alternatively on the basis of an objectively assessed housing need the contribution made by this site would not enable the council to meet its five-year housing supply. Mr Maurici QC for the appellant says that this was treated by the Officer and hence by the council as a tipping point and if it was not the tipping point on either analysis then that may have affected the decision to grant planning permission. The judge needed to be satisfied that the decision would necessarily be the same if it were remitted to the council for re-determination and that was not the case. The judge reasoned that if the true position on the basis of objectively assessed housing need had been put before the committee by the Officer's Report, the shortfall would have been even worse than the Committee were led to believe. That was the view that Sullivan LJ took on the papers and it is a view which, as I read it, was shared by Sir David Keene in the Hunston Properties case at paragraph 28 of his judgment which the judge quoted. Nevertheless, Mr Maurici has said that the members simply did not consider any points relating to the objectively assessed need for housing because that was not the basis on which they considered the application.

I am bound to say that when I considered this case on the papers I thought that the judge was plainly right on this ground, but Mr Maurici has persuaded me that there is an arguable point here which may enable him to distinguish what Sir David Keene said in the Hunston case and I will therefore grant permission to appeal on that ground.

The second ground relates to alternative sites. The Officer's Report said that alternative sites were not a material consideration but what is material is of course a question of planning judgment relating to the facts of the particular case and what was in issue here was a mixed use development in close proximity both to a railway station and to the motorway which the officer stressed was a site that was unique in Runnymede. I do not consider that there is any real prospect of success on that ground.

The third ground is that the matter should have gone back to the council in the light of the decision of the local Planning Inspector. The local Planning Inspector was not satisfied that the council had been sufficiently rigorous in deciding whether to remove this particular site from the green belt. But if the site had been removed from the green belt, then the very special circumstances test would not have been applicable and there would have been a presumption in favour of sustainable development. I do not consider that that could have changed the decision since the Inspector was considering quite a different issue right across the borough rather than the particular application on this site. I refuse permission therefore on that ground.

The fourth ground of appeal relates to the judge's decision about costs. The judge awarded a modest proportion of the interested party's costs. I agree with Sullivan LJ that that was well within the judge's discretion and I refuse permission on that ground too.

The upshot therefore is that I grant permission on ground 1 alone and refuse permission on all the other grounds.