Michael Mansell v Tonbridge & Malling Borough Council
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Garnham |
| Judgment Date | 10 November 2016 |
| Neutral Citation | [2016] EWHC 2832 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1001/2016 |
| Date | 10 November 2016 |
[2016] EWHC 2832 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Garnham
Case No: CO/1001/2016
Ms Annabel Graham Paul (instructed by Richard Buxton Environment & Public Law) for the Claimant
Mr Juan Lopez (instructed by Tonbridge & Malling Borough Council) for the Defendant
Hearing dates: 25 October 2016
Approved Judgment
Introduction
On 7 January 2016, Tonbridge & Malling Borough Council ("the Council") granted planning permission to Croudace Portland for the erection of four residential dwellings and associated access, parking and landscaping on land at Rocks Farm, The Rocks Road, East Malling in Kent. The decision to grant planning permission was made by the members of the Council's Area 3 Planning Committee at a planning committee meeting on 7 January 2016, with an effective date of 13 January 2016. In reaching that decision, members of the committee were advised by an officer's report which recommended approval.
Croudace Portland and East Malling Trust, the present owners of the site, are interested parties in these proceedings. The Defendant is the Council. The application is brought by Michael Mansell who lives in a listed property next door to the site in respect of which planning permission was granted. Before me, Mr Mansell was represented by Ms Annabel Graham Paul and the Council by Mr Juan Lopez. The interested parties were not represented. I record here my gratitude for the clear and helpful submissions, both written and oral, advanced by both counsel.
The Factual Background
The site of the proposed development is in land to the south east of East Malling village. The land is designated in the local plan as "countryside", and the village is designated as an "other rural settlement". Part of the village is a designated conservation area. The Claimant's property, which lies at the border of the conservation area, is grade 2 listed. It dates from 1507.
The development is for four five bedroomed houses, each served by a double garage or car barn with parking for four cars. The development site is presently part of an agricultural holding comprising a large agricultural building of some 600m 2 and a residential bungalow used by a caretaker. The agricultural building has in the past been used as an apple store. I was told that the building remains in use. The development contemplates that both buildings would be demolished. The site is owned by the East Malling Trust. The intention is that it will be sold to the Applicant for planning permission, namely Croudace Portland.
A report was prepared for the planning committee by (or on behalf of) the Council's Director of Planning, Housing and Environmental Health (hereafter "the Officer"). The report runs to some eighteen pages. The report explains that the reasons for reporting to the committee were first the fact that the development involved " departure from the adopted development plan" and second because of high levels of local interest. The report described the site and the relevant planning history, which was limited to the grant of planning permission for the building of the bungalow in 1957, and a summary of the consultation.
Part 6 of the report contains the operative discussion by, and advice from, the Officer to the committee. The section began by reminding members that as the local planning authority the Council was required to determine planning applications in accordance with the Development Plan in force unless material considerations indicate otherwise. The report went on to note that the application site was open countryside, outside the village settlement confines of East Malling and that accordingly identified restrictions applied to such development. I will need to return to consider in a little detail the advice contained in Part 6 of the report. For the present, however, it is convenient simply to note that the report concluded with the following observations:
"6.42 …it is important to understand that the starting point for the determination of this planning application rests with the adopted Development Plan. Against that starting point there are other material planning considerations that must be given appropriate regard, not least the requirements set out within the NPPF which is an important material consideration and the planning and design of the proposal for the site in the context of the permitted development fall back position. The weight to attribute to each of those other material planning considerations, on an individual and cumulative basis, and the overall balance is ultimately a matter of judgement for the Planning Committee. My view is that the balance can lie in favour of granting planning permission."
On 7 January 2016 a supplementary report was produced by the Officer and a recommendation, amended as to matters of detail, was made. Later that day the Area 3 committee resolved that the application be approved in accordance with the main and supplementary reports of the Officer.
A pre-action protocol letter was sent on behalf of the Claimant on 10 February 2016. A response was sent on 22 February 2016 and these proceedings were commenced on 23 February 2016.
The Legal Framework
Central to this challenge are criticisms of the Officer's main report to the planning committee, seen in the light of national and local planning policy. There was no dispute between the parties as to the relevant legal principles to be applied in considering such a challenge.
Those principles are conveniently set out in the judgment of Hickinbottom J in R (on the application of Zurich Assurance Ltd) v North Lincolnshire Council [2012] EWHC 3708). At paragraph 15 of that judgment Hickinbottom J said the following:
"15. Each local planning authority delegates its planning functions to a planning committee, which acts on the basis of information provided by case officers in the form of a report. Such a report usually also includes a recommendation as to how the application should be dealt with. With regard to such reports:
i) In the absence of contrary evidence, it is a reasonable inference that members of the planning committee follow the reasoning of the report, particularly where a recommendation is adopted.
ii) When challenged, such reports are not to be subjected to the same exegesis that might be appropriate for the interpretation of a statute: what is required is a fair reading of the report as a whole.
Consequently:
"[A]n application for judicial review based on criticisms of the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken" ( Oxton Farms, Samuel Smiths Old Brewery (Tadcaster) v Selby District Council (18 April 1997) 1997 WL 1106, per Judge LJ as he then was).
iii) In construing reports, it has to be borne in mind that they are addressed to a "knowledgeable readership", including council members "who, by virtue of that membership, may be expected to have a substantial local and background knowledge" ( R v Mendip District Council ex parte Fabre (2000) 80 P & CR 500, per Sullivan J as he then was). That background knowledge includes "a working knowledge of the statutory test" for determination of a planning application Oxton Farms, per Pill LJ).
16 The principles relevant to the proper approach to national and local planning policy are equally uncontroversial:
i) The interpretation of policy is a matter of law, not of planning judgment ( Tesco Stores Ltd v Dundee City Council [2012] UKSC 13).
ii) National planning policy, and any relevant local plan or strategy, are material considerations; but local authorities need not follow such guidance or plan, if other material considerations outweigh them.
iii) Whereas what amounts to a material consideration is a matter of law, the weight to be given to such considerations is a question of planning judgment: the part any particular material consideration should play in the decision-making process, if any, is a matter entirely for the planning committee ( Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 at page 780 per Lord Hoffman)."
The first of the claimant's grounds of challenge concerns a concept in planning law known as "fall back position". Because such a comparison may be a material consideration, a planning committee will often compare, on the one hand, the developments for which planning permission is sought, with, on the other, what the applicants could do with the land and premises without the permission.
The provision governing what the applicants could do with this land at these premises without planning permission is the Town and County Planning (General Permitted Development) (England) Order 2015 (the "2015 GPDO").
Paragraph 3 of the 2015 Order provides, at subparagraph (1), that " planning permission is … granted for the classes of development described as permitted development in Schedule 2." Part 3 of Schedule 2 identifies a number of classes of permitted development. Class Q permits certain development in respect of agricultural buildings.
Class Q provides that permitted development is
"development consisting of (a) a change of use of a building and any land within its curtilage from a use as an agricultural building to a use falling within Class C3 (dwelling houses) of the Schedule to the Use Classes Order and (b) building operations reasonably necessary to convert the building referred to in paragraph (a) to a use falling within Class...
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Michael Mansell v Tonbridge and Malling Borough Council Croudace Portland and Another (Interested Parties)
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