Potter, R (On the Application Of) v Amber Valley Borough Council

The Claimant owns a property known as Mount Farm, Hazelwood, Belper in Derbyshire. The Interested Parties, Mr & Mrs Wood, live next door at Mount Farm Barn, which they bought and developed into a dwelling with the benefit of planning permission in 2004. The Defendant (“the Council”) is the local planning authority for the area.

In this judicial review, the Claimant seeks to quash the grant of planning permission by the Council on 20 December 2012 for a development comprising a new house immediately to the north of and behind both Mount Farm Barn and Mount Farm, on land belonging to Mr & Mrs Wood. I will deal with the grounds in detail in due course; but, briefly, it is submitted on behalf of the Claimant that the reasons given by the Council were inadequate, the Council failed to comply with its statutory obligation to determine the application in accordance with the development plan unless other material considerations indicate otherwise, the Council failed to take into account a particular element of policy as a material consideration, and the Council imposed a condition that is unenforceable.

A number of the grounds are focused on the relevant planning policies, to which I turn first.

The main policies relevant to this claim are found in the local development plan; but the provisions of paragraphs 47-49 of the National Planning Policy Framework are worthy of note. “To boost significantly the supply of housing”, paragraph 47 requires local authorities to assess housing need on the basis of objective evidence and to “identify and update annually a supply of specific deliverable sites sufficient to provide five years worth of housing against their housing requirements and to identify sites for satisfy that need over the next five years…”. The uncontroverted evidence of Mr Derek Stafford, the Council’s Assistant Director of Planning and Regeneration, is that there was in December 2012 – and still is – a chronic shortage of housing land supply in the borough (13 December 2013 Statement, paragraph 22).

The relevant local policy provisions are found in the Amber Valley Local Plan 2006.

By Policy H3, there is generally a presumption in favour of planning permission for housing development in identified urban areas, but those do not include Hazelwood.

Outside those urban areas, a distinction is drawn between sites within and those outside the built framework of a settlement. For the former, “the scope of housing will be more restricted” than in the urban areas listed in Policy H3 (paragraph 3.46). In respect of such sites, Policy H4 provides:

“Within the built framework of all other settlements not listed in Policy H3, planning permission will be granted for housing development, providing the proposals are in the form of one or more of the following:-

1.

the conversion of existing dwellings to provide additional units, or of existing buildings to housing from other uses

2.

extensions to or replacement of existing dwellings

3.

new development on previously developed or brownfield land, or on vacant land which has not been previously developed, providing the development is in the form of infilling of small gaps capable of accommodating no more than 2 dwellings within existing groups of houses, subject to the character of the surroundings.”

For the latter, the policy is even more restrictive. They are subject to Policy H5, the notes to which state:

“3.47

Outside settlements, housing development needs to be strictly controlled…

…

3.51

Although Housing Policy 5 of the adopted Joint Structure Plan recognises that development may be acceptable beyond the built framework of settlements, but within the wider physical confines of villages, it is considered that more than sufficient opportunities are likely to be available within the built framework of the Borough’s urban areas and villages, together with those sites identified in policy H1 to meet the Joint Structure Plan requirement.”

Policy H5 itself provides:

“Outside the built framework of settlements, planning permission will not be granted for housing development unless the proposals are in the form of one or more of the following:-

1.

extensions to existing buildings, provided this would not result in a significant change to the scale or character of the dwelling and its surroundings

2.

replacement of existing dwellings, providing that the number of dwelling units is not increased

3.

new development which can be shown to be necessary for the operation of a rural based activity and where countryside location is essential.”

Whether within or outside a settlement, all housing development must also satisfy the criteria set out in Policy H12 (see paragraphs 3.46 and 3.50), which sets various criteria for quality and design of housing development, including a requirement that “all new housing development to be at a minimum net density of 30 dwellings per hectare, unless it can be shown that there are significant constraints to development, or that development would have an adverse impact on the character or appearance of the locality” or (by virtue of paragraph 3.75 of the accompanying notes) “unless it can be shown that this would be inappropriate having regard to the scale and character of the locality”.

Mount Farm and the barn were originally under the same ownership, as part of the same working farm. The barn was sold in 2004.

An application for planning permission to convert the Mount Farm Barn to a dwelling house, with a separate access, was made to the Council by Planning Design Practice Ltd on behalf of Mr & Mrs Wood (Application AVA/2004/0209). It was accompanied by a plan showing the proposed application site by a red line, drawn quite closely round the barn itself and excluding the land comprising the current application site. Planning permission was granted on 18 May 2004. The reasons included that the proposed development was within settlement, and therefore the policy in the then-emerging Local Plan that became Policy H4 applied. Under the grant, the development to be carried out only in accordance with the details and specifications shown on a plan, which showed a fenced site and no garden beyond the back wall at the north of the barn, i.e. again not including any of the land comprising the current application site.

Later in 2004, a further application (Application No AVA/2004/1468) was made for a different proposed development converting and extending the barn, on a larger application site, which included some garden to the north of the barn, but which still only covered part of the current application site. That application was refused on 7 February 2005. The stated reasons for the refusal did not refer to the policy that became Policy H4, but rather the policy that became Policy H5 of the adopted Local Plan, i.e. on the basis that this development was (at least in part) housing in the countryside, outside the built framework of the settlement.

In 2005, there was an application for planning permission for the reconstruction of Mount Farm, which was accompanied by a plan which showed the words “Open fields beyond” on the land where the current application site is situated. The application was allowed on appeal.

In July 2007, planning permission was refused for two lean-to extensions to Mount Farm Barn. The officer’s report for that application seems to have been premised on the basis that the proposed development was within settlement.

A planning application for a house on the current application site, with which this claim is primarily concerned, was first submitted in 2011. There was only one objector, namely the Claimant who objected on a number of grounds. In considering the application, the Council’s Planning Board (a committee of councillors which is responsible for considering and determining planning applications) (“the Board”) had the benefit of a report by a Council Planning Officer, Mrs Rae Gee. Her report considered the Claimant’s contention in his objections that the proposed site was not garden land, but she said that she had reviewed that planning file and “the subject of the application was included in the red-line site boundary and no conditions were imposed which restricted the use of the land”. She concluded that the site was “classed as domestic curtilage and is used and maintained as such i.e. the grass is mowed and there is decking” (paragraph F); and therefore within the built framework of a settlement. However, because such land was no longer classified as brownfield land or previously developed land, the development would nevertheless be contrary to Policy H4 and therefore unacceptable in principle. However, having considered the planning history of the site, the scale and character of the development, efficient use of land, impact on the highway network, and impact on existing properties, the report concluded:

“Whilst the approval of this application would represent a departure from the Local Plan, the other material considerations outlined above are significant and in this instance outweigh the presumption against residential development on private gardens and provide justification to support the proposal. Despite being a greenfield site the development is acceptable in terms of scale and character, makes efficient use of the land, a satisfactory access to the highway can be provided, there is limited impact on the amenity of the area and there is no significant adverse impact on landscape features. As a result the development should be supported.”

The officer’s report thus recommended approval of the proposal.

The Board considered the application at its meeting on 16 January 2012, when it followed that recommendation. In giving its reasons, it said that it had taken account of policies which it listed (including Policy H4, but not Policy H5), and continued:

“In detail: The development complies with the provisions of the development plan for the locality and raises no unresolved issues in relation to the location of the site, privacy, amenity, sunlight/daylight, character and design, landscape or heritage features and highway safety.”

On 7 March 2012, the Claimant sent a pre-action protocol letter to the Council challenging the decision to grant planning permission on ten grounds, including the contradiction between the Board’s reasons stating that the proposal was in accordance with the local plan and the officer’s report and discussion that was based on the premise that it was contrary to Policy H4. On 15 May 2012, in this court, Singh J quashed the grant of planning permission effectively by agreement, on the basis that the Council accepted that the reasons were inconsistent and therefore did not contest the claim.

Mr & Mrs Wood played no active part in that claim, taking a neutral position. However, they wished to obtain some reassurance from the Council as to the future of the application. On 26 March 2012, Mr Wood wrote to Mr Stafford:

“I would like to request an officer’s written recommendation based on the planning submission already approved so that my adviser can consider whether we would benefit from representation in Court as Interested Parties. I have to say that I would be very reluctant to get involved with legal costs and that all I am seeking is a reasonable measure of comfort that we could use in the event of a refusal.”

Mr Stafford responded on 2 April as follows:

“Given the circumstances surrounding the application, namely the proposed claim for Judicial Review on the grounds that the decision to grant planning permission is unlawful and subject to that decision being quashed by the High Court, the application will need to be re-determined by the Council with a different case officer assigned to the application. The application would also be subject to re-consultation with the relevant consultees.

Notwithstanding the above, I can advise you as to the relevant planning considerations to be taken into account in the re-determination of the application and the likely conclusion of officers, based on the previous consultation and responses received to that consultation.

The application site lies within the built framework of Hazelwood, as defined in the adopted Amber Valley Borough Local Plan 2006. The application would therefore be considered against policy H4 of the adopted Local Plan. The application constitutes a departure to the development plan, on the basis that it does not comply with any of the criteria set out in policy H4, given that garden land is no longer classified as previously developed or brownfield land. This position is re-affirmed in the new National Planning Policy Framework (NPPF) which has replaced the previous Planning Policy Statement 3 (PPS3).

However, other material planning considerations will need to be taken into account to establish whether these would outweigh the policy presumption against development. In this respect, I would not anticipate that any re-consultation on the application would raise any further issues in relation to the relevant planning history to the site, the scale and character of the development, the impact on the highway network or the impact on existing properties, that would result in a different recommendation being reached by officers in respect of the application, i.e. that planning permission be granted, subject to appropriate conditions.

Subject to the planning permission being quashed and the timing of such a decision, the application will then be re-determined as expediently as possible. The application may be determined through delegated powers as previously, or alternatively it may be referred to the Planning Board for their determination.”

That was, therefore, encouraging for Mr Wood. On the same day, he wrote to the Claimant’s solicitor indicating that he would not oppose the judicial review claim.

The correspondence continued. Mr Stafford sent another email to Mr Wood on 20 July 2012:

“Your understanding in respect of the grounds on which a Judicial Review could be mounted is essentially one I would agree with and I clearly need to ensure that the Council is not put in a position where any such challenge, if made, would be successful. In this respect, the issue of whether the current application site is judged to be within or outside the built framework could arguably be seen as a matter of planning judgement, rather than a matter of law, but the key concerns on which I need to be satisfied is that whichever conclusion is reached on this issue, a decision could not then be successfully challenged on the basis that the Council had not properly set out the reasons for reaching that decision.”

There was nothing in that email either to concern Mr Wood unduly.

However, two things then happened. First, another case officer, Mr Paul Wilson, was assigned to the application; and he conducted a more thorough examination of the planning history, including the plans. Second, Mr Stafford apparently took legal advice. Following discussions with Mr Wilson and receipt of that advice, he wrote again to Mr Wood on 10 September 2012 with a new view on the recommendation that the Council’s officers were likely to make to the Board:

“I can now advise as follows:

I am of the opinion that the application site relates to land which, at the time that planning permission was originally granted in May 2004 for the conversion and extension of the barn to a dwelling and the formation of an access at Mount Farm (AVA/2004/0209), was not part of the curtilage and that it appears that the land was at some point thereafter been subject to a material change of use, when it was incorporated into the garden. I have attached plans from both the 2004 application and the current application to illustrate this point.

I am of the opinion that as the material change of use referred to above has occurred in the past 10 years, it is an unlawful use and that the Council must determine the current application against the backdrop of what is the lawful use of the land.

In the light of the above, I consider that the application site is within the countryside, outside the built framework of the settlement Hazelwood, as defined in the adopted Amber Valley Borough Local Plan 2006. On this basis, the application should be determined against Policy H5 of the Local Plan and having regard to the criteria set out in the policy, that the application should be recommended for refusal.”

That was expressly a provisional view, and Mr Stafford asked for any further evidence, comments or representations from Mr Wood that might alter the position, within 28 days.

Mr Wood duly lodged some further submissions himself, and an email from a local resident, Mr Glen Wall, saying that he remembered part of the application site being mainly an orchard, and being laid to fruit trees and bushes, from the 1960s. Mr Stafford responded on 14 November 2012:

“However, this information does not in Mr Wilson’s opinion provide any compelling evidence that would lead me to conclude that the land in question can be classified as garden land, contrary to the position established with planning application AVA/2004/0209”

That prompted Mr Wood to obtain and provide the further following documents:

All of those documents went to the Board, together with the officer’s report prepared by Mr Wilson. By this stage, it was clear that crucial – indeed, the crucial – planning issues to which the application gave rise were as follows:

As to (i), the officer went through the planning history with remarkable care, noting the red-line boundary in the original application for planning permission to convert the Mount Farm Barn to a dwelling (Application AVA/2004/0209) (see paragraph 12 above). It is clear from reading his report as a whole that he understood the potential legal significance of the planning history and in particular that red-line boundary; namely that, in an application for planning permission for a new dwelling house, if nothing is said in the application about the extent of the proposed curtilage and in the absence of any contrary indication, the reasonable inference is that the red-line on the site plan submitted with the application defines the proposed curtilage of that new house (Barnett v Secretary of State for Communities and Local Government [2008] EWHC 1601 (Admin) at [33] per Sullivan J, approved by the Court of Appeal [2009] EWCA Civ 476 at [24] and [29]). In other words, there is a rebuttable presumption that the red-line on such a plan delineates the curtilage of the new house.

Having conducted a careful and comprehensive review of the planning history and plans, he concluded:

“Therefore, based on the planning history in relation to the current application site and its surroundings, the current application site can reasonably be regarded as being located outside the settlement boundary and by definition within the countryside.”

He then went on to consider whether such a presumption was rebutted by other evidence. He referred to the additional information provided by Mr Wood, and the need to consider whether it demonstrated the site comprised garden land. He considered each piece of evidence, including the old Ordnance Survey plan, but did not consider any demonstrated it was. In particular, he drew a distinction between an area of trees as an orchard, and a domestic garden area. He concluded:

“… [I]t is not considered that the further information submitted by the applicant provides a clear demonstration that the current application site comprises ‘garden land’ and that it can therefore be regarded as being located within the settlement boundary.”

Therefore, the proposed development had to be considered against Policy H5, not Policy H4.

As to (ii), he found that the development would not comply with Policy H5. He also said that, even if Policy H4 applied, the proposal would still be unacceptable in principle and careful consideration would need to be given as to whether other material considerations might outweigh that; but he did not go on to deal with whether, in his opinion, they would do so.

Finally, as to (iii), he considered whether there were material considerations that outweighed that non-compliance with Policy H5. He found that the proposed development was compliant with a number of other polices (including Policy H12), but the fact of compliance with those policies did not outweigh the non-compliance with Policy H5. He therefore recommended refusal of the application.

It is unsurprising that, in this claim, both parties rely on Mr Wilson’s analysis of the crucial issues as set out in the officer’s report: it is model.

The Board considered the application at its meeting on 17 December 2012. It is clear from the summary of the public contributions that whether the application site was or was not part of the garden/curtilage of Mount Farm Barn was a live and significant issue. It dominated the proceedings. The Claimant spoke as to the position in 2004, when the barn was bought by Mr & Mrs Wood, which suggested that, then, it was not garden. However, Mr Wall, Mrs Heath, another local resident (who does not appear to have submitted anything in writing) and a director from Planning Design Practice Ltd spoke as to the use of the land going back 50 years. Members of the Board are recorded as listening to those members of the public, and also considering Mr Wilson’s report.

In the event, the Board resolved that permission be granted subject to appropriate conditions.

I will deal with the way in which the Board’s reasons were put together when I consider the grounds of challenge. However, the reasons given in the minutes, settled and approved some six weeks later, were as follows:

“1.

The application site falls within the built framework of the settlement of Hazelwood.

2.

Although the proposal does not satisfy any of the criteria set out in saved Policy H4 of the Adopted Amber Valley Borough Local Plan 2006, other material considerations are significant and are considered to outweigh the presumption against residential development on greenfield land, namely that the development is acceptable in relation to the criteria set out in saved Policy H12 of the Adopted Amber Valley Borough Local Plan 2006, in terms of scale and character, the effect on the amenities or privacy of adjoining or adjacent properties and providing satisfactory access to the highway network. The development will also contribute to meeting the overall housing requirement in the Borough.”

On the basis of the Board’s approval, a decision notice granting planning permission was issued on 20 December 2012. Under the heading “Reasons for Granting Permission”, after referring to the policies to which the Board were said to have had regard as material considerations (including Policy H4, but not Policy H5), it says:

“In detail:

Whilst the approval of this application would represent a departure from the Local Plan, the other material considerations are significant and in this instance outweigh the presumption against residential development on greenfield land and provide justification to support the proposal. Despite being a greenfield site the development is acceptable in terms of scale and character, the effect on amenities or privacy of adjoining or adjacent properties and providing satisfactory access to the highway network. The development will also contribute to meeting the overall housing requirement in the Borough.”

It is of course that decision which the Claimant now challenges.

It is submitted on the Claimant’s behalf that the decision to grant permission was unlawful on the following grounds:

Permission was refused on the papers by His Honour Judge Oliver-Jones QC, but granted by Lewis J at a hearing on 5 November 2013. Before me Ms Jenny Wigley represented the Claimant, and Mr Andrew Hogan appeared for the Defendant. I thank them both for their helpful submissions.

The legal principles as to the correct approach to planning decision-making in the context of the development plan and other material considerations are well-established.

Section 70(2) of the Town and Country Planning Act 1990 provides that, in dealing with an application for planning permission, the planning authority (usually, of course, acting through a committee of councillors, like the Board in this case) must have regard to the provisions of “the development plan”, as well as “any other material consideration”. “The development plan” for any area is defined by section 38 of the Planning and Compulsory Purchase Act 2004 to include adopted local plans. However, the development plan is not merely a material consideration. Section 38(6) provides that:

“If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.”

Section 38(6) therefore raises a presumption that planning decisions will be taken in accordance with the development plan, looked at as a whole; but that presumption is rebuttable by other material considerations.

Whilst they must take into account all material considerations, the weight to be given to such considerations is exclusively a matter of planning judgment for the committee, who are entitled to give a material consideration whatever weight, if any, they consider appropriate, subject only to their decision not being irrational in the sense of Wednesbury unreasonable (Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 at page 780F-G per Lord Hoffman).

Although this may be supplemented by (e.g.) information provided at a meeting, as in this case, the committee usually act on the basis of information provided by a planning case officer in the form of a report. Again as in this case, such a report usually also includes a recommendation as to how the application should be dealt with. In approaching reports, it has to be borne in mind that they are addressed to a “knowledgeable readership”, and as such they can be presumed generally to know the area over which they operate and the planning regime (R v Mendip District Council ex parte Fabre (2000) 80 P & CR 500, per Sullivan J as he then was; see also Oxton Farms, Samuel Smiths Old Brewery (Tadcaster) v Selby District Council (18 April 1997) 1997 WL 1106106, per Pill LJ).

With regard to the legal principles relating to a planning authority’s duty to give reasons, as from 25 June 2013, an authority has had a statutory obligation to give reasons when granting permission only when it is granted subject to conditions (articles 2 and 7(a) of the Town and Country Planning (Development Management Procedure) (England) (Amendment) Order 2013 (SI 2013 No 1238)). However, at the relevant time (December 2012), an authority was obliged to provide both a summary of its reasons for all grants of planning permission (article 31(1)(a)(i) of the Town and Country Planning (Development Management Order) (England) Order 2010 (SI 2010 No 2184) (“the 2010 Order”)), and a summary of the policies and proposals in the development plan which were relevant to the permission (article 31(1)(a)(ii)).

I was referred to a number of authorities on the extent of that obligation, including R (Siraj) v Kirklees Metropolitan Council [2010] EWCA Civ 1286; [2011] JPL 571 at [15], R (Macrae) v County of Herefordshire District Council [2012] EWCA Civ 457, R (Cherkley Campaign Ltd) v Mole Valley District Council [2013] EWHC 2582 (Admin), and R (Wildie) v Wakefield Metropolitan District Council [2013] EWHC 2769 (Admin).

For the purposes of this claim, if I might be forgiven, the summary of the principles derived from these cases I gave recently in R (Mevagissey Parish Council) v Cornwall Council [2013] EWHC 3684 (Admin) at [43] is a useful starting point:

“(i)

When planning permission is granted, only summary reasons are required. The duty to give summary reasons is not to be equated with either the obligation to give full reasons for refusing permission, or the obligation imposed on the Secretary of State (or inspector acting in his behalf) to give reasons when determining a planning appeal.

(ii)

However, the summary reasons must be sufficient to enable a member of the public with an interest in the lawfulness of the permission granted to understand the rationale of the decision, and to ascertain whether, in granting the permission, the decision-maker correctly interpreted relevant policies.

(iii)

Whether summary reasons given are adequate will depend on the circumstances of the particular case.

(iv)

An important circumstance will be whether a decision-making committee agree with the officer’s report. Absent any indication to the contrary, it can usually be assumed that a committee who agree with an officer’s recommendation also agree with that officer’s reasoning, so that short summary reasons will be adequate. In particular, in those circumstances, the committee can be assumed to agree with the officer’s analysis of relevant policies.

(v)

But, where the committee disagree with the officer’s recommendation, it may not be so easy to assume that they have interpreted the relevant policies in the same way as the officer, particularly where a difference in interpretation might explain the difference in the conclusions they have reached. In any event, it must be evident from the summary reasons how and why the committee have rejected the officer’s advice and thus come to the conclusion to which they have come. That can, of course, be done in any form.

(vi)

Therefore, whilst the standard of reasons does not, as a matter of law, change, in practice it is likely that summary reasons will have to be drafted with greater care where the committee disagree with the recommendation of the officer, to enable members of the public to understand the rationale of their decision, and to make it apparent that they have understood and properly applied relevant policies.”

Mr Hogan submitted that that placed too great a burden on planning authorities, a burden that was not imposed by article 31(1)(a)(i) the 2010 Order itself. For that proposition, he relied on R (Ling (Bridlington) Ltd) v East Riding of Yorkshire County Council [2007] EWHC 1604 (Admin) especially at [47]-[49] per Sir Michael Harrison, as approved by the Court of Appeal in R (Siraj) v Kirklees Metropolitan Council [2010] EWCA Civ 1286 at 16] per Sullivan LJ and R (Telford Trustee No 1 Ltd) v Telford and Wrekin Council [2011] EWCA Civ 896 at [19]-[26] per Richards LJ. Those cases stress (in the words of Richards LJ in the Telford case at [24]):

“… [T]he statutory requirement is to give a summary of the reasons for the grant of planning permission, not a summary of the reasons for rejecting an objector’s representations (even on a principal issue) or a summary of reasons for reasons.”

Therefore, submitted Mr Hogan, the reasons need to state that the issues have been decided in favour of the applicant, but not why they have been found thus. The authorities are replete with exhortations not to impose too high a burden on a planning authority with regard to reasons which are, after all, only required to be “summary”.

With respect to Mr Hogan, in my view, those submissions do not cover the whole canvas. It is noteworthy that, in the Telford case, the planning committee followed the recommendation of the officer’s report. As Sir Michael Harrison said in [50] of Ling (also approved in Siraj and the Telford case):

“… [T]he adequacy of reasons for the grant of planning permission will depend on the circumstances of each case. The officer’s report to committee will be a relevant consideration. If the officer’s report recommended refusal and the members decided to grant permission, a fuller summary of reasons would be appropriate than would be the case where members had simply followed the officer’s recommendation. In the latter case, a short summary may well be appropriate.”

It is implicit in that passage that, where the committee do not follow the recommendation of the officer’s report, then reasons more extensive than a mere “short summary” may be required.

That has been reflected in a number of recent cases, including of course the Mevagissey case quoted above. In R (Cherkley Campaign Ltd) v Mole Valley District Council [2013] EWHC 2582 (Admin), Haddon-Cave J considered it “obviously correct” that, where a planning committee grants planning permission contrary to an officer’s recommendation, “there must be a rational and discernible basis for doing so” (see [45], emphasis added). In R (Wildie) v Wakefield Metropolitan District Council [2013] EWHC 2769 (Admin), Stephen Morris QC sitting as a Deputy High Court Judge too considered that, where the committee disagreed with the officers’ recommendation, “the fuller summary reasons should include reasons for that disagreement” (see [9(8)]). He also approved Haddon-Cave J’s approach in Cherkley Campaign, to which I have referred; and said (at [9(9)]):

“Article 31 does not require a summary of reasons for rejecting objections to grant of permission: Ling [at [48]). ‘Objections’ here, in my judgment, refer to third party objections made in the course of the planning application process, and not the planning officer’s reasons for recommending refusal.”

I do not find these authorities difficult to construe or reconcile; indeed, I find the propositions upon which they are based clear and consistent. Where planning permission is granted, summary reasons (where required) are designed to inform members of the public with an interest, including neighbours. Those members of the public are entitled to comfort from the reasons that the committee correctly interpreted and applied the relevant law and policies, taking into account all material considerations and disregarding irrelevant matters. That does not require a long dissertation. Where a committee endorses the recommendation of an officer’s report, in the absence of anything suggesting the contrary, it can be assumed that they rely on the officers’ analysis. However, where a committee grants planning permission contrary to the advice and recommendation of the officers’ report, there can usually be no such assumption. In those circumstances, although always depending on the facts of the particular case, fuller summary reasons may be required because, as Sullivan LJ said in Siraj (at [15]):

“A member of the public with an interest in challenging the lawfulness of planning permission will not necessarily be able to ascertain from the officer’s report whether, in granting planning permission, the members correctly interpreted the local policies and took all relevant matters into account and disregarded irrelevant matters.”

Whilst of course guarding against imposing too high an obligation on planning decision-makers, I do not consider the Telford case (which, as I have said, concerned a planning committee that adopted the recommendation of its officer’s report) changed or intended to change this line of authority in respect of the correct approach where the committee act contrary to the officer’s recommendation, which is well-established and founded on principle.

In respect of reasons, additionally relevant to this claim, paragraphs 11.2 and 11.3 of the Council’s own “Local Code of Good Practice for Councillors and Officers dealing with Planning Matters” state:

“… [I]f it is intended to approve [an application not in accordance with the development plan], the material considerations leading to this conclusion must be clearly identified, and how these justify overriding the development plan clearly demonstrated…”.

If the Planning Board make a decision contrary to the officers’ recommendation (whether approval or refusal), a detailed minute of the Board’s reasons shall be made and a copy placed on the application file…”.

I now turn to the individual grounds.

May I first clear the ground by dealing with Ground 3A. Ms Wigley contended that the Board made no clear decision as to which policy of the Local Plan was breached, nor the extent of the breach. In doing so, she relied upon this passage from the judgment of Lord Reed in Tesco Stores Limited v Dundee City Council [2012] UKSC 13 at [22]:

“Where it is concluded that the proposal is not in accordance with the development plan, it is necessary to understand the nature and extent of the departure from the plan which the grant of consent would involve in order to consider on a proper basis whether such a departure is justified by other considerations.”

In this case, Ms Wigley submitted that the decision notice only refers to “the presumption against residential development on greenfield land”; and, whilst she accepts that there is more detail in the meeting minutes, they cannot properly supplement what is written in the decision notice. From the notice, the policy from which the development departs is simply not identified.

This ground was not part of Ms Wigley’s core submissions, and she did not strongly press it. In my view, she was right to be reticent: there is no force in this ground. Clearly, whether the application site was in the garden/curtilage of the current dwelling – and, therefore, whether it fell within rather than outside the built framework of the settlement – was a crucial issue before the Board. The officer’s report made it clear that that was an issue with which the Board must grapple and determine, and the contributions from the members of the public at the meeting to which I have referred largely – almost exclusively – went to that issue. The Board’s reasons – in both the minutes and the decision notice – refer to Policy H4, and not Policy H5, as a material consideration to which it had regard. The decision notice says:

“Whilst the approval of this application would represent a departure from the Local Plan, the other material considerations are significant and in this instance outweigh the presumption against residential development on greenfield land and provide justification to support the proposal.”

It is clear from that that the Board found that Policy H4 (and not Policy H5) applied.

Ms Wigley focused her core submissions on Ground 2; and it is to that ground I should go next.

Ms Wigley submitted, rightly, that the officer’s report correctly identified the main issues to which the applications gave rise, and the correct legal approach to those issues. As I have described (paragraph 26 above), it recognised the Barnett presumption that the red-line on the original application plan showed the limits of the curtilage for Mount Farm Barn as a dwelling house; and carefully went through the evidence adduced by Mr & Mrs Wood to rebut that presumption and why, in the officer’s view, that evidence was not compelling – including the distinction he drew between an orchard and a garden area. Whilst, on my finding, the Board clearly determined that the application site was subject to Policy H4, the only basis upon which that determination could have been made was by a finding that the site was garden/curtilage of Mount Farm Barn, and thus within the settlement. Whilst it was open to the Board to make that finding, it was a finding contrary to the officer’s report. The summary reasons do not indicate on their face that the Board adopted the right legal approach based on Barnett, or understood that the original application plan set up a presumption that the application site fell outside the garden/curtilage; and, if the Board members did appreciate and apply that approach, why they disagreed with the officer’s view that the evidence of past orchards etc was insufficient to displace that presumption. In short, Ms Wigley submitted, the Claimant and other members of the public simply cannot determine from the summary reasons given why, contrary to the careful advice and recommendation of their officers, the Board determined that the site fell within the garden/curtilage of Mount Farm Barn.

In response, Mr Hogan relying particularly on the Telford case, submitted that it was sufficient for the summary reasons to make clear that the Board considered that the site did fall within that garden/curtilage; and it was implicit from the reference in the reasons to Policy H4, rather than Policy H5, that they did. It was unnecessary for them to set out why they made such a finding. Article 31(1)(a)(i) the 2010 Order did not require them to do so.

On this issue I prefer – by some distance – the submissions of Ms Wigley. I have already dealt with the relevant authorities (see paragraphs 44-50 above). The summary reasons were required to show that the committee correctly interpreted and applied the relevant law and policies. Mr Hogan’s submission was based on the proposition that, whilst differing from the officers’ conclusion as to whether the site was or was not garden/curtilage of Mount Farm Barn, the Board can be assumed to have understood and applied his analysis as to the Barnett presumption and the need to rebut it. Although a planning committee may be assumed to understand the general planning regime, in my view they cannot generally be assumed to know the Barnett principle – nor, in the circumstances of this case, can it be assumed that they understood and adopted the (correct) legal analysis of the officer’s report. From the reasons the Board gave, the analytical process by which the Board came to the conclusion that the application site was garden/curtilage is unknown. It may have:

Given the officer’s careful and comprehensive report, in my judgment, this case on its own facts required more by way of summary reasons than the reasons in fact given for explaining why the Board disagreed with its own officer on this crucial issue.

Three further points on this ground.

For those reasons, Ms Wigley has made good Ground 2: I am persuaded that the Council through its Board failed to comply with its obligation to give summary reasons under article 31(1)(a)(i) the 2010 Order.

Before I deal with the other grounds, let me deal with appropriate relief on the basis of Ground 2 alone.

Mr Hogan submitted that, if I were to find the Council’s reasons inadequate, I should nevertheless not quash the planning permission, in the light of the following:

Relief in a claim for judicial review is always, of course, in the discretion of the court. However, generally the relief will include an order quashing the decision (see, e.g., Berkeley v Secretary of State for the Environment [2001] 2 AC 603 at page 616F per Lord Hoffman), although the court may exercise its discretion not to do so. Although it is open to the court to (e.g.) require further and proper reasons to be given, that general principle applies in cases where the illegality lies in a failure to provide adequate reasons, where the usual remedy is to quash the underlying decision (Wildie, at [20(1)]). The reason for that approach has been put thus:

“Such a remedy serves the dual purpose of encouraging rigorous decision-making and avoiding the risk associated with ‘after the event’ reconstruction of reasons.” (ibid).

In exercising the discretion not to quash, the court will take all the circumstances of a particular case into account. In this case:

For those reasons, on this ground alone, in my judgment, the appropriate relief is to quash the decision of 20 December 2012 to grant planning permission.

In the circumstances, I can deal with the other grounds of challenge shortly, by offering the following comments on each.

Ground 1 is also based on a submission that the Board failed to comply with its statutory duty to give summary reasons. Ms Wigley submits that the material considerations given in the minutes and the decision notice to warrant permission being granted for this development, despite it being contrary to Policy H4, were not the actual reasons of the Board for its decision.

At the 17 December 2012 meeting, the Council’s Solicitor (Mr Paul Benski) took notes, which confirm that the main issue discussed was that of the designation of the application site as garden/curtilage; there is virtually no reference to material considerations that might indicate a grant of planning permission in conflict with Policy H4. After the approval was proposed, and just before the vote was taken, Mr Stafford advised the Board of the following:

“… If minded to approve – it is a departure. Therefore are there material considerations to outweigh?”

The only responses recorded in Mr Benski’s notes – all from councillor members of the Board – are the following:

“Cox: if we approve delegate conditions – use previous ones as basis for these.

Moon: p47/48

It is in character with surroundings

In settlement

Lyttle: original application & this so similar – cannot support a refusal”

It is then recorded that the vote was taken, and was unanimous to approve.

Mr Benski thereafter contacted Mr Stafford the following day, on 18 December 2102, to say that he was not entirely clear as to the reasons for the approval of this application, leaving blank in his draft the material considerations that outweighed the breach of policy. Mr Stafford then provided a draft by email to Mr Benski that stated that the material considerations that made the proposal acceptable in planning terms were:

Those were the matters that found their way into both the official minutes of the meeting, and the decision letter of 20 December 2012. Subsequently – six weeks later – the minutes were approved by the Board.

Ms Wigley referred to authorities which stress the need for the statutory duty to give reasons to be exercised at the time the decision is taken (see, e.g., Macrae at [22]), and that the obligation has to be exercised by the decision-makers themselves (see, e.g., R (Chisnall) v London Borough of Richmond-upon-Thames [2005] EWHC 134 (Admin) at [42]). She submits that in this case, the eventual reasons clearly go beyond anything discussed at the 17 December 2012 meeting, and amounted to an ex post facto justification for the Board’s decision already made. There is no evidence that the material considerations eventually recorded were in fact those in the mind of the Board members at the time they made their decision. The Board thus escaped the disciplining effect and purpose of giving reasons. This was consequently, Ms Wigley submitted, a further breach of the Board’s duty to give reasons.

Because of my conclusion on Ground 2, it is unnecessary for me to decide whether this properly founds a separate ground for setting the Board’s decision aside. The courts are, very properly, wary about intruding into the political debates of a planning committee such as the Board (see R (Bishop’s Stortford Civic Federation) v East Hertfordshire District Council [2014] EWHC 348 (Admin) at [37]-[41], where Cranston J, for good reason, urges particular prudence and caution). Absent allegations of bias or bad faith – and no such allegations are made here – the court will usually accept reasons that are given and decline to examine the debate and discussions that led to them (Bishops Stortford case at [40]; and RKT Investments v Hackney Borough Council [1978] 36 P & CR 442). Ms Wigley says – and I accept – that there is no reported case concerning a situation where someone in the position of the Claimant seeks to challenge the accuracy of planning meeting minutes or official reasons given. I am also sensitive to the fact that the decision under review is the decision set out in the planning notice of 20 December 2012, with the reasons set out therein. It is well-established that earlier resolution and discussions are not judicially reviewable (R v West Oxfordshire District Council ex parte Pearce (CH) Homes [1986] JPL 523); and article 31 of the 2010 Order, in the form that applied to this decision, required only a summary of reasons “in the decision notice”.

For all those reasons, given my firm conclusions on Ground 2, I am reluctant to embark on detailed consideration of Ground 1, when it is not necessary for the determination of this claim. Suffice it to say that, even adopting the most cautious approach, it does seem to me that, on the evidence I have seen, the way the Board went about its business is the cause of some concern; and it is further evidence that the Board never really identified the issues with which they had to grapple and which it had to determine, in this instance whether, as the proposed development was contrary to Policy H4, there were material considerations that outweighed that fact.

This ground is closely linked to Ground 1. Ms Wigley submits that the Board’s approach was legally wrong: having determined that the development was a departure from the development plan, they approved the application without identifying any material consideration which could properly overcome the in principle unacceptability of the development. The reasons rely upon mainly the fact that the proposal complies with other policies within the plan (including the requirements of Policy H12), which the plan makes clear have to be complied with in any event. Ms Wigley relied on Dartford Borough Council v Secretary of State for Communities and Local Government [2012] EWHC 634 (Admin) in support of the proposition that mere compliance with other policies cannot justify a departure from another substantive policy. The only matter that does not fall into that category is that the proposal will “contribute to meeting the overall housing requirement in the Borough”; but, although there is pressure on the Council to identify housing sites to fulfil their NPPF housing obligation, that was not mentioned in the officer’s report or at the meeting, and appeared to form no part of the members’ actual reasons for approving the application.

However:

This ground is made more complex and difficult by the evidence to which I have already alluded that the Board never really grappled with the crucial issues in this application, including whether there were material considerations that outweighed the departure from Policy H4. However, as a discrete ground, for those reasons set out above, I do not find this ground to be made good.

Ms Wigley relied upon the discrete requirement in Policy H12 as to a minimum density of 30 dwellings per hectare (see paragraph 10 above). The officer’s report did not alert members to this requirement; and, she says, there is no evidence that the Board members even considered it. The Board consequently failed to take into account this material consideration.

However, I am unimpressed by this submission. The officer’s report specifically considered Policy H12, setting out some of its specific requirements although not that relating to minimum density. It is for the officer to determine what policies are relevant to a particular application, using his experience and expertise. That decision is an exercise of planning judgment in itself. Not each element of Policy H12 is necessarily relevant to every application for housing development. For the addition of a single house on a single site, it is difficult to see how minimum housing density comes into play or is relevant at all. Certainly, in my view, it was open to the officer to consider that it was not relevant. What is clear is that the officer considered the proposed development was in compliance with Policy H12: he expressly said so.

For those reasons, I do not consider this ground to be made good.

I can deal with this ground very shortly, as Ms Wigley does not suggest that, even if found to be good, it could result in quashing the decision.

It is proposed that the new development will share the access to the road currently used by Mount Farm Barn. The 16 January 2012 planning permission had a condition that that access be provided with certain specified visibility splays. On 20 March 2012, Derbyshire County Council as the highway authority indicated that those splays could not be met to the left, falling a few metres short; but that the (unspecified) achievable visibility would still be acceptable from a highway point of view. After the January 2012 permission was set aside and in response to the reconsideration, the highway authority said that they had no objections to the application, “subject to conditions as before”. In the event, the new permission had a revised condition referring simply to “maximum achievable splays”. That condition is, Ms Wigley submitted, not enforceable for uncertainty.

That point seems to me possibly to have force; but, as I am quashing the decision on other grounds – and Ms Wigley accepts that this ground could not lead to quashing – I need not comment further on it. It is, and never has been, a central issue in this claim.

For the reasons I have given, I allow the judicial review; and shall order that the grant of planning permission to the Interested Parties for the application site on 20 December 2012 be quashed, and the application be remitted to the Council for redetermination.