David Hayes v Wychavon District Council Helen Payne (Interested Party)

Hearing dates: 12 th June 2014

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

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.

Grounds for Judicial Review

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.

Law

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 Wednesburysense ( 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...