Hayes, R (on the application of) v Wychavon District Council & Anor

The Claimant applies for judicial review of the Defendant’s decision on 9^th October 2013 to grant planning permission to the Interested Party for “the erection of an agricultural building for goats, chickens and tractor/equipment storage”at Swanbrook House, Swanbrook, Pirton, Worcester, WR8 9EL.

The permission was made subject to conditions in relation to inter alia the materials to be used, external lighting, drainage, use of the building and disposal of manure.

The Claimant lives near the site of the proposed development and believes that he and his neighbours will be adversely affected by it.

A previous application in similar terms was refused on 15^th May 2013.

The Interested Party, who applied for the planning permission, and is resident at Swanbrook House, was unable to attend the hearing because of ill health or be represented because of the cost, but she submitted written representations which I have considered.

The Claimant has abandoned his first ground which alleged an unlawful failure to consult the Environment Agency.

The second ground is that the Defendant’s planning officer failed to make sufficient inquiries, meaning the officer’s report was deficient and the subsequent decision by the Defendant was unsupported by evidence, unlawful and irrational.

The third ground is that the Defendant’s planning officer failed to understand or apply relevant policy and thus failed to have regard to a material consideration.

The fourth ground is that the Defendant failed to have regard to the legal consequences of failing to impose a condition regulating the nature of the development.

In considering the issues in this claim, I have applied the principles of law set out below, resolving where necessary the issues in dispute between the parties at the hearing before me.

The determination of an application for planning permission, and any appeal, is to be made in accordance with the development plan, unless material considerations indicate otherwise: section 38(6) Planning and Compulsory Purchase Act 2004, read together with sections 70 and 72 Town and Country Planning Act 1990 (“TCPA 1990”).

It is for the courts to decide whether a matter is a relevant consideration; but it is for the decision-maker to attribute to the relevant considerations such weight as he thinks fit. The courts will not interfere unless the decision-maker acts unreasonably in the Wednesbury sense (Tesco Stores Ltd v Secretary of State for the Environment and others [1995] 1 WLR 759).

Sections 70(1)(a) and 72 confer broad powers on the planning authority to impose conditions on the grant of planning permission. Circular 11/95 “Use of conditions in planning permission” (“the Circular”) gave departmental guidance on the use of planning conditions at the date of the decision. The introduction states:

“2.

The power to impose conditions when granting planning permission is very wide. If used properly, conditions can enhance the quality of development and enable many development proposals to proceed where it would otherwise have been necessary to refuse planning permission. The objectives of planning, however, are best served when that power is exercised in such a way that conditions are clearly seen to be fair, reasonable and practicable…”

“3.

Paragraphs 14 - 42 of the Annex stress that conditions should only be imposed where they are both necessary and reasonable, as well as enforceable, precise and relevant both to planning and to the development to be permitted. Attention is particularly drawn to paragraphs 15 - 17 which advise that in considering whether a condition is necessary authorities should ask themselves whether planning permission would have to be refused if the requirements of that condition were not imposed. If it would not, then the condition needs special and precise justification….”

Reference was also made to paragraph 28 of the Circular (whether the applicant can reasonably be expected to comply with the condition) and paragraphs 36 and 37 together with the endnote reference to British Railways Board v Secretary of State for the Environment [1993] JPL 32.

Frequently, a condition requires an applicant to submit further details which have to be approved by the planning authority before the condition can be fulfilled. In this case, details relating to drainage and the disposal of manure have to be submitted and approved by the Defendant (this has not yet been done). There is no provision, either in the TCPA 1990 or the Circular, for a further stage of consultation with neighbours and objectors before the planning authority grants its approval for a scheme submitted pursuant to a condition. Nor is it the practice of planning authorities to consult generally at this stage. This is because the subject-matter of the conditions will usually have been consulted upon at the stage of the initial application. Here, the Claimant and other neighbours have already expressed their concerns on drainage and disposal of manure. It is the responsibility of the planning authority to determine the detail of the drainage and manure disposal schemes proposed by the applicant, having due regard to any concerns earlier expressed. I find no support in the statute, the Circular or the common law requirements of fairness for the Claimant’s submission that it was unlawful for the Defendant to impose conditions for post-permission approval of details relating to drainage or manure disposal on the ground that the Claimant was thereby deprived of an opportunity to comment on the details proposed.

The correct approach to adopt to the development plan was comprehensively reviewed by the Supreme Court in Tesco Stores Limited v Dundee City Council [2012] UKSC 13. Lord Reed (with whose judgment Lord Brown, Lord Hope, Lord Kerr and Lord Dyson agreed) said, at [17]:

“It has long been established that a planning authority must proceed upon a proper understanding of the development plan: see, for example, Gransden & Co Ltd v Secretary of State for the Environment (1985) 54 P & CR 86, 94 per Woolf J, affd (1986) 54 P & CR 361; Horsham DC v Secretary of State for the Environment (1991) 63 P & CR 2319, 225-226 per Nolan LJ. The need for a proper understanding follows, in the first place, from the fact that the planning authority is required by statute to have regard to the provisions of the development plan: it cannot have regard to the provisions of the plan if it fails to understand them. It also follows from the legal status given to the development plan by section 25 of the 1997 Act. The effect of the predecessor of section 25, namely section 18A of the Town and Country (Planning) Scotland Act 1972 (as inserted by section 58 of the Planning and Compensation Act 1991), was considered by the House of Lords in the case of City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33, [1997] 1 WLR 1447. It is sufficient for present purposes to cite a passage from the speech of Lord Clyde, with whom the other members of the House expressed their agreement. At p.44, 1459, his lordship observed:

“In the practical application of sec. 18A it will obviously be necessary for the decision-maker to consider the development plan, identify any provisions which are relevant to the question before him and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it.”

Lord Reed rejected the proposition that each planning authority was entitled to determine the meaning of development plans from time to time as it pleased, within the limits of rationality. He said, at [18], that development plans should be “interpreted objectively in accordance with the language used, read in its proper context”. They are intended to guide the decisions of planning authorities, who should only depart from them for good reason.

Lord Reed re-affirmed well-established principles on the requirement for the planning authority to make an exercise of judgment, particularly where planning policies are in conflict, saying at [19]:

“That is not to say that such statements should be construed as if they were statutory or contractual provisions. Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and the exercise of their judgment can only be challenged on the ground that it is irrational or perverse (Tesco Stores Ltd v. Secretary of State for the Environment [1995] 1 WLR 659, 780 per Lord Hoffmann).”

A planning authority is subject to the general public law duty to make a rational decision, taking into relevant matters and disregarding irrelevant matters. As Forbes J. said in Seddon Properties v Secretary of State for the Environment (1978) 42 P & CR 26:

“(1)

The Secretary of State must not act perversely. That is, if the court considers that no reasonable person in the position of the Secretary of State, properly directing himself on the relevant material, could have reached the conclusion which he did reach, the decision may be overturned. See, e.g.Ashbridge Investments Ltd v. Minister of Housing and Local Government [1965] 1 W.L.R. 1320, per Lord Denning M.R. at 1326F and Harman L.J. at 1328H. This is really no more than another example of the principle enshrined in a sentence from the judgment of Lord Greene M.R. in Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 K.B. 223 at 230:

‘It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere.’

(2)

In reaching his conclusion the Secretary of State must not take into account irrelevant material or fail to take into account that which is relevant: see, e.g. again the Ashbridge Investments case, per Lord Denning M.R. loc. cit.”

The Claimant also relied on the general public law principles set out in the speech of Lord Millett in Begum v TowerHamlets London Borough Council [2003] 2 AC 430 at [99]:

“A decision may be quashed if it is based on a finding of fact or inference from the facts which is perverse or irrational; or there was no evidence to support it; or it was made by reference to irrelevant factors or without regard to relevant factors. It is not necessary to identify a specific error of law; if the decision cannot be supported the court will infer that the decision-making authority misunderstood or overlooked relevant evidence or misdirected itself in law. The court cannot substitute its own findings of fact for those of the decision-making authority if there was evidence to support them; and questions as to the weight to be given to a particular piece of evidence and the credibility of witnesses are for the decision-making authority and not the court. But these are the only significant limitations on the court’s jurisdiction, and they are not very different from the limitations which practical considerations impose on an appellate court with full jurisdiction to entertain appeals on fact or law but which deals with them on the papers only and without hearing oral evidence.”

Although these general public law principles are applicable to planning decisions, the Claimant cannot use them as a vehicle for challenging the merits of legitimate planning judgments. In Newsmith v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74, Sullivan J. said at [6] – [8]:

“… An allegation that an Inspector's conclusion on the planning merits is Wednesbury perverse is, in principle, within the scope of a challenge under section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits.

In any case, where an expert tribunal is the fact finding body the threshold of Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments. For example: is a building in keeping with its surroundings? Could its impact on the landscape be sufficiently ameliorated by landscaping? Is the site sufficiently accessible by public transport? et cetera. Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable.

Moreover, the Inspector’s conclusions will invariably be based not merely upon the evidence heard at an inquiry or an informal hearing, or contained in written representations but, and this will often be of crucial importance, upon the impressions received on the site inspection. Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment, faces a particularly daunting task ...”

Newsmith was a statutory application to quash an Inspector’s decision. However, I consider that the cautionary observations of Sullivan J. are also relevant to judicial review claims challenging decisions by planning authorities who have made an exercise of planning judgment, in the light of local knowledge, which is often based on site visits, as well as written and sometimes oral representations.

The Claimant was highly critical of the planning officer’s report, pointing to flaws and omissions. In my judgment, it is important to distinguish between the planning decision and the planning officer’s report. Whilst the report provides insight into the basis of the decision, and the matters taken into account, it is not the decision letter, and should not be subject to the level of scrutiny appropriate to a decision letter. Usually the author of the report will not be the decision-maker, even where the decision is delegated to officers.

In this case, the Defendant’s planning officer assessed the application, visited the site, and prepared a delegated report on 9^th October 2013. That report was submitted to Mr Pearce, Development Manager (Planning) who read and endorsed the report and its recommendation to approve the application, subject to recommended conditions. Mr Pearce, as the planning officer’s line manager, had been aware of the details of the application for some time prior to receipt of the report. The proposed development, by reason of its nature, scale and the consultation response from the Parish Council, fell within the Council’s adopted scheme of delegation and so was not reported to the Planning Committee. Mr Pearce was authorised under the scheme to grant planning permission.

The application was also referred to Councillor Middleborough, the Leader of the Council, who was also Councillor for the Ward. According to the note at the end of the report, he was aware of the site and the concerns of local residents, and was happy for the application to be approved subject to conditions. If the Councillor had not been content with the proposed decision to approve, the application would have been referred to the Planning Committee.

Criticism of the planning officer’s report is a key part of the Claimant’s claim. Mr Goatley referred me to several cases in which the Court had considered challenges based on flaws in the officers’ reports: BT plc v Gloucester CC [2001] EWHC Admin 1001; [2002] 2 P&CR 33, per Elias J at [117]; Oxton Farms v Selby DC [1997] EGCS 609; R (Morge) v Hampshire County Council [2001] UKSC per Baroness Hale, at [36]. Mr Goatley distilled the relevant legal principles as follows:

I apply those principles to this case, though they have to be modified to some extent where the decision is made by a senior planning officer exercising delegated authority, not by the Planning Committee. Here the planning officer submitted her report recommending approval to Mr Pearce, who duly took the decision. He was entrusted, on behalf of the Council, to weigh the competing public and private interests and make the required planning judgments. Mr Pearce had knowledge of the relevant planning law and policy and so it was not necessary to set these out in the report. He also had the benefit of local knowledge, and some prior knowledge in relation to this particular application. So it was not necessary to set out every detail relating to the application and the site. However, the planning officer who drafted the report was responsible for ensuring that the overall effect of the report did not significantly mislead him about material matters.

Broadly the same principles apply in relation to the decision made by Councillor Middleborough, who as Ward Councillor would have been familiar with the location of the application site.

The Claimant correctly submitted that a planning authority (acting through its planning officer) is under a duty to take all reasonable steps to acquaint itself with the information relevant to the decision in order to be able to arrive at the correct decision, citing Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1997] AC 1014 and R v Secretary of State for the Home Department ex p Iyadurai [1998] Imm AR 470, per Lord Woolf MR at 475. As a general principle, that is uncontroversial, but plainly the scope and content of the duty will vary according to the context.

Where a public body has to conduct an inquiry, pursuant to statutory powers and duties, it is entitled to decide upon the extent of the inquiry, subject only to the supervisory jurisdiction of the court. The principles were helpfully explained by Laws LJ in R (Khatun) v London Borough of Newham [2004] EWCA Civ 55 [2005] QB 37, at [35]:

“.. it is for the decision-maker and not the court, subject again to Wednesbury review, to decide upon the manner and intensity of inquiry to be undertaken into any relevant factor accepted or demonstrated as such. This view is I think supported by the judgment of Schiemann J in R v Nottingham City Council, Ex p Costello (1989) 21 HLR 301, to which Mr Luba referred us. That case concerned the degree of inquiry which an authority was obliged to undertake into issues of priority need and intentional homelessness. Schiemann J said, at p 309:

“In my view the court should establish what material was before the authority and should only strike down a decision by the authority not to make further inquiries if no reasonable council possessed of that material could suppose that the inquiries they had made were sufficient.”

This approach is lent authoritative support by the decision of this court in R v Kensington and Chelsea Royal London Borough Council, Ex p Bayani (1990) 22 HLR 406, which was concerned with the authority's duty of inquiry in a homelessness case. Neill LJ said, at p 415:

“The court should not intervene merely because it considers that further inquiries would have been sensible or desirable. It should intervene only if no reasonable housing authority could have been satisfied on the basis of the inquiries made.”

In my judgment, similar principles apply where a planning authority conducts an inquiry into a planning application within the statutory framework of the TCPA 1990 and the relevant national and local planning policies. Where it is alleged that the planning authority failed in its duty to make sufficient inquiry, the question to be asked is whether the inquiry made by the planning authority was so inadequate that no reasonable planning authority could suppose that it had sufficient material available upon which to make its decision to grant planning permission and impose conditions.

It was common ground that the following policies in the Defendant’s District Local Plan were relevant to this application:

“GD2 GENERAL DEVELOPMENT CONTROL

All development proposals should follow the principles of sustainable development as set out in national, regional and structure plan policy.

Proposals for development that are also in accordance with Policy GD1 (Location Strategy) will be permitted where they would not have an adverse effect (where relevant) on any of the following:

a)

the character or appearance of the building, the surrounding built environment, or the rural landscape;

b)

public and private amenity, health and safety;

c)

the efficient operation of surrounding land uses;

d)

environmental and cultural heritage resources, nature conservation and public rights of way;

e)

the efficient operation of the transport network;

f)

the capacity of existing or proposed utility services and social infrastructure to support the development.

Relevant criteria in assessing development proposals will normally include access and transport arrangements, layout and design, the type and intensity of proposed uses, any cumulative impacts, and any mitigating measures.”

“ECON7 AGRICULTURAL BUILDINGS, STRUCTURES AND ASSOCIATED WORKS

Where planning permission is required, development for the purposes of agriculture or forestry will be permitted, provided:

a)

it is necessary and designed for these purposes;

b)

it makes acceptable arrangements for the storage/disposal of waste; and

c)

any new buildings or structures are sited close to existing farm or forestry buildings, unless the functional need for a more isolated site can be clearly demonstrated.”

I turn to consider the specific complaints made by the Claimant in relation to each topic, namely: livestock, waste and drainage, highways and traffic, and the location of the building. It would require too much repetition to address these topics in turn under each of the Claimant’s judicial review grounds, as set out in paragraphs 7, 8 and 9 above.

The Claimant’s submission is that the planning officer failed to make sufficient inquiry into the number of chickens the applicant intended to house in the proposed building and whether she intended to house other types of livestock there in the future, and if so, how many. Any adverse effect on the amenity of the neighbours (e.g. noise, odour) could potentially be affected by the number of animals or poultry housed, and so the planning officer should have ascertained precisely how the building was going to be used. Policy GD2 required consideration of any adverse effect on private amenity. The absence of proper inquiry meant that the planning officer’s opinion that there would be no harm to the amenity of the neighbours from the unregulated keeping of livestock lacked evidential foundation. The decision to grant planning permission was flawed for the same reason. The Defendant failed to have regard, or adequate regard, to a material consideration, namely the consequences of failing to restrict the numbers and types of livestock by way of condition.

In the first application for planning permission for the building, no information was provided to demonstrate the number of livestock that the building was to house. The Defendant asked for further information on this and other issues, but did not receive a response in time, and so the application was refused.

In the second application, the applicant informed the Defendant that the purpose of the proposed building was to house a herd of 70 goats and possibly some chickens. The application documentation stated that the footprint of the building (extending to some 297 sq. m) was the minimum to meet the intended purpose. It referred to the Rural and Industrial Design and Building Association (“RIDBA”) guidelines for the housing of goats, and advised that the building size was exactly what was required to house 70 goats, allowing for bedding/pens (175 sq m); storage of farm machinery to service the goats/building (20 sq m); indoor exercise area and isolation for veterinary services (102 sq m). The ridge height was the bare minimum, allowing for headroom required for cleaning out and delivering feed and fodder.

In her report the planning officer accepted these figures and concluded that the size and scale of the building was reasonably necessary and designed for its purpose, thus meeting criterion a) of ECON7. She described it as a field shelter typically used for goats. The plans showed that it was designed as a long shallow building, with an open frontage, enabling the goats to graze in the surrounding field. She referred to the objections made by neighbours on grounds of noise and smell pollution. She concluded that, while the building would be relatively close to the neighbouring residential properties (two neighbours were about 35 m away) it was unlikely that the proposed use of the building would result in any significant harm in terms of residential amenity, noise or odour harm. Thus, she had regard to paragraph b) in policy GD2.

The Defendant correctly proceeded on the basis that the use of the land (excluding the garden) was agricultural. In so far as it was being used for equestrian purposes, that use was unauthorised. The applicant explained in her representations to the court that, when she and her husband purchased Swanbrook house in 2002 there were just over 3 acres of ground attached to the Grade 2 listed dwelling house. The plans showed an area around the house marked as domestic garden and the majority was marked as ‘Agricultural Land’. In 2003 they purchased a further 7.95 acres of agricultural land adjoining Swanbrook House, which was occupied under an agricultural tenancy and used for grazing livestock. During the applicant’s ownership, the tenant continued to graze sheep for a limited period. The applicant has kept horses in the field where the new building is proposed and a small flock of free range poultry and goats elsewhere on the property.

As the use of the land is agricultural, the applicant is entitled to keep livestock and poultry on the land, without seeking planning permission, and without any planning restriction as to type or number of livestock or poultry. Planning permission was only required for the building.

The Defendant granted permission subject to the following condition:

“The building hereby approved shall only be used to store agricultural equipment for use on the applicant’s land and for the shelter of livestock and shall not be used for any general storage purposes.

Reason – In order to protect the amenities of the area and to comply with saved Local Plan Policy ECON7 in restricting building in the open countryside unless there is a proven agricultural need and justification.”

I consider that the Defendant was entitled to conclude that it was not necessary for the purpose of determining the application, to ascertain the number of chickens or goats that would be housed in the proposed building. Mr Pearce, who made the decision on behalf of the Defendant, explained the basis of the judgment which he made. The modest size of the building (less than 300 sq m) would itself constrain the number of chickens or goats that could be housed. The Defendant is in a rural district and so its officers have experience of a large number of agricultural buildings of all different shapes and sizes and for different purposes. Officers do not have to insist on stock numbers to assess the environmental impact as an objective assessment is made based on the size of the building or land, and the supporting information.

I also consider that the Defendant was entitled to conclude that a condition limiting livestock by type or number would have failed to meet the six tests in paragraph 14 of Circular. Such a condition would not have been reasonable or enforceable. The applicant was entitled to have unlimited livestock on the field in which the building was based, and a condition preventing the type or number which could use the open-fronted shelter would have been an onerous restriction on an authorised activity. It would also have been impractical and unrealistic for the Defendant’s officers to enforce by counting the number of livestock in the building at any one time.

The Claimant submitted that the planning officer failed to make adequate inquiry into the arrangements for dealing with waste and drainage. Waste would include manure, which would have to be disposed of or stored. Drainage would include water contaminated by faeces and urine and other dirt when the building was sluiced clean. If, as seemed likely, the goats were milked, there would be waste from the milking process. Arrangements also had to be made for the adequate drainage of surface rain water from the building. The Claimant submitted that, given the importance of these issues, the Defendant should not have granted planning permission subject to conditions to be fulfilled at a later stage. Instead, the Defendant should have made sufficient inquiries to satisfy itself that there were adequate arrangements in place prior to the grant of planning permission.

In my judgment, the Claimant has failed to establish any error of law in the Defendant’s approach to the issues of waste and drainage.

The officer’s report explicitly considered arrangements for the storage and disposal of waste, in accordance with ECON7, paragraph b). The application stated that the animal waste would be re-used as fertiliser in the surrounding fields. This would be a permissible agricultural use. The concerns from the neighbours about animal waste, milk waste and slurry were noted and considered. In my view, it was a legitimate exercise of discretion, and in accordance with the guidance found in the Circular, to address the concerns about waste by imposing an appropriate condition. A planning authority in a rural area such as this has experience in animals and treatment of their waste products, as demonstrated in the witness statement by Mr Pearce. The planning officer was not avoiding the issue. She said in terms that details of measures to clear away and clean manure and slurry should be sought and implementation secured by condition. The terms of the condition imposed were effective since they prevent the applicant from using the building for its proposed use until approval is obtained. The condition also made express reference to the two relevant policies. It stated:

“6.

Prior to the first use of the building hereby approved, details of the proposed disposal of manure shall be submitted to and approved by the Local Planning Authority. The agreed measures shall be implemented before the first use of the building hereby approved.

Reason – In order to preserve the amenities of the area and in the interests of the amenities of neighbouring residential properties in line with saved Local Plan policy GD2, and criteria b) of Policy ECON7.”

In the event, further information submitted by the applicant pursuant to the condition has confirmed the use of manure and fertiliser in the applicant’s fields and garden. If there is any surplus it can be sold on to one of the many local fertiliser pellet processors.

The Defendant has not yet approved the waste proposals. In doing so, it should take into account any relevant concerns previously raised by the Claimant and others.

The officer correctly stated that a milking parlour was not part of the application for proposed use. It merely referred to “future possibilities of milking”. The justification statement said the applicant’s intention was eventually to commence a small scale milking operation of goats at her farm. Although a full-scale dairy for 70 milking goats would need planning permission for slurry tanks and refrigeration plant (as recorded in the objections), an operation of that nature was not proposed at this site at this time. Merely milking some goats in a herd which is lawfully kept on land in agricultural use would be an ancillary (permitted) agricultural use which would not require planning permission.

Under the heading ‘Drainage & Flooding’, the officer noted that the application stated that there would not be any foul water as a result of the application because the animals would be housed on straw. The officer was not satisfied by this, and said that further information would be required as discharge of foul water to the adjacent watercourse would not be acceptable. The officer was clearly mindful of the risk that there would be contaminated water from sluicing out the shed, including the area without straw, which ought not to drain into the watercourse. It was recommended that a condition be imposed to require the applicant to submit proposals to address this issue to the Council’s Drainage Engineers, for their approval. In my judgment, the decision to impose a condition to address this issue was a legitimate exercise of discretion by the Defendant, which was in accordance with the guidance found in the Circular.

As the officer who wrote the report no longer works for the Defendant, it was not possible to obtain an explanation as to why she said, under the heading ‘Ecology & Wildlife’, that there was no risk of foul drainage affecting the neighbouring watercourses due to the topography of the land. It is hard to square this sentence with her concern about foul water drainage in her recommendations under the heading ‘Drainage & Flooding’. Whatever the explanation for this, and even if it was a mistake, the decision which the Defendant made clearly did impose an adequate condition to address the issue of foul water run-off.

The condition was deliberately formulated so as to prevent any development until a satisfactory drainage scheme was in place. It states:

“4.

Development shall not begin until drainage works have been carried out in accordance with details to be submitted to and approved in writing by the Local Planning Authority.

Reason – To ensure a satisfactory means of drainage is available to serve the development.”

In respect of surface water, the applicant proposed a water harvesting system to store the rainwater in tanks for re-use. Any surplus water would drain off into the adjacent brook. The officer’s report recorded that the Council’s Drainage Engineers had raised concerns about surface water drainage, commenting that, although a tank was to be used to harvest rain water, further details were required regarding the disposal of surface water. The neighbours had raised concerns about the risk of flooding in the light of past experience. Thus the Defendant quite properly required additional information so that it could satisfy itself that the proposals were adequate. I consider that the decision to impose a condition to address these issues by way of condition was a legitimate exercise of discretion by the Defendant, which was in accordance with the guidance in the Circular.

Paragraph 45 of the Circular expressly provides for conditions reserving other matters, stating:

“ a Local Planning Authority may, .. when granting full or outline planning permission, impose a condition requiring that details of a specified aspect of the development which was not fully described in the application … be submitted for approval before the development is begun. In the case of a full permission, such a condition can relate to details (such as landscape works) which might have been reserved matters had the application been made in outline.”

Illustrations of acceptable conditions are set out in Appendix A. It includes a drainage condition in very similar terms to the one used in this case.

The Defendant has not yet approved the drainage proposals. In doing so, it should take into account any relevant concerns previously raised by the Claimant and others.

The Claimant submits that the planning officer failed to make sufficient inquiry as to how many, and what type of vehicle movements would be required in association with looking after goats and/or chickens, and also in relation to the proposed future milking activities. The access road is single track, and the application does not propose any parking for vehicles which might reasonably be anticipated to have to access the site for a number of purposes such as livestock delivery and collection lorries; deliveries of food, bedding and other materials; collections for waste disposal; collections for milk/ eggs; veterinary visits; visits by people working at the site.

I do not consider that the Defendant’s approach discloses any error of law.

The officer carried out a site visit, during which she would have been able to check the salient details of the application. She recorded the concerns about the safety and suitability of the existing access and surrounding lanes for the proposed use and the absence of on-site parking. She noted that the access to the site from Hill Road had been in existence for a number of years. She concluded:

“As the building is intended for agricultural purposes, it is unlikely that this use would have any significant impact on traffic generation in the area or the local highway network.”

I am unable to accept the Claimant’s submission that, because the officer did not set out the type of vehicle use associated with the proposed use of this building, she did not have them well in mind. They are obvious and a matter of common sense. She was not required to provide this degree of detail. Nor was she required to make any further investigations. The information which she had about the proposed use was sufficient to enable her to come to a view.

The officer’s conclusion that the proposed use would not have any significant impact on traffic generation was a judgment which she was entitled to reach on the evidence before her. The proposed use was a small-scale farming activity at property that has permitted agricultural use, via an existing access.

She then appeared to contradict this conclusion by stating:

“Nonetheless there is no information submitted with this application to demonstrate … whether these buildings could be used to provide livestock shelter as sought by this application.”

Yet she went on to reach the opposite conclusion:

“the revised application with the additional information complies with criterion … c) of this policy in that it has been demonstrated that there is a functional requirement for a new building in this location (separated from the main house and other existing buildings).”

The paragraph quoted in paragraph 62 above duplicates text contained in the first report. In my view, the explanation for the contradiction is that the officer has been “cutting and pasting” text from the first report and has failed to delete or amend the sentences which were no longer applicable by the time of the second report because further information had been provided which led the officer to reach a different conclusion. In the applicant’s statement of 25^th July 2013, the applicant’s agent stated:

“2.

The Planning Officer has raised the question as to why the proposed building cannot be moved closer to the residence dwelling at Swanbrook House.

This would bring the livestock closer to a non-agricultural dwelling opposite Swanbrook House which is in direct conflict to the guidelines that Wychavon offer…”

These errors are regrettable and should have been corrected by the planning officer or Mr Pearce. However, I consider that they are drafting errors only. It is clear what the officer’s conclusions were on these issues, and I do not consider that the mistakes in the report would have been likely to mislead Mr Pearce or Councillor Middleborough, given their background knowledge. Thus, I do not consider that these mistakes by the planning officer disclose an error of law in the Defendant’s decision-making process. Nor is there any doubt about the Defendant’s conclusions on these issues when deciding to grant planning permission. Alternatively, there would be no purpose in remitting the application to the Defendant for re-consideration on these matters, as the outcome would be a forgone conclusion.

Therefore, for the reasons set out above, I dismiss the Claimant’s claim for judicial review.