R Earl Shilton Action Group v Hinckley and Bosworth Borough Council Joanne Squires and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 07 April 2014 |
| Neutral Citation | [2014] EWHC 1764 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 April 2014 |
| Docket Number | CO/11560/2013 |
[2014] EWHC 1764 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT IN BIRMINGHAM
Birmingham Civil Justice Centre
Priory Courts
33 Bull Street
Birmingham
West Midlands
B4 6DS
Mr Justice Hickinbottom
CO/11560/2013
and
Richard Kimblin (instructed by Marrons Solicitors) appeared for the Claimant
Timothy Leader (instructed by M Rice, Solicitor, Hinckley and Bosworth Borough Council) appeared for the Defendant
The Interested Parties not appearing or being represented
Introduction
The Claimant is a residents' association which seeks to challenge the decision of the Defendant planning authority ("the Council") dated 10 July 2013, to grant planning permission to the Second Interested Party, for a ten-pitch caravan site on land known as Dalebrook Farm, Leicester Road, Earl Shilton, Leicestershire.
Both Interested Parties are Romani Gypsies. For the last 25 years (since Commission for Rational Equality v Dutton [1989] QB 783), Gypsies have been recognised as a distinct ethnic group. As a matter of domestic law, they are recognised as having a protected characteristic under the Equality Act 2010; and it is now well-established that, by virtue of the European Convention on Human Rights, the state has a duty to "facilitate the Gypsy way of life" for ethnic Gypsies ( Chapman v United Kingdom [2001] EHRR 18, especially at paragraph 96), which way of life requires "special protection" ( DH v Czech Republic (2008) 47 EHRR 3, especially at paragraph 182). There has been a long history of local authorities failing to provide Gypsy and Traveller sites, which I briefly described in R (Knowles and Knowles) v Secretary of State Work and Pensions [2013] EWHC 19 (Admin) at [5] and following, resulting in a policy imperative now to do so.
The grant of planning permission in this case was made following consideration of the application by the Council's Planning Committee at a meeting on 25 June 2013 when, in accordance with the advice and recommendation of an officer's report, it approved the proposed development.
The Claimant relies on three grounds. It is submitted that the officer's report, which the Committee essentially followed, was misleading as to the relevant national policy in two respects (Grounds 1A and 1B) and as to local policy (Ground 2). In addition, the Committee were not informed of the most up-to-date assessment of need for Gypsy and Traveller sites, which arguably showed a lesser need than that in the older assessment upon which the officer's report was based (Ground 3).
On 24 September 2013, His Honour Judge David Cooke granted permission to proceed on ground 1A but refused it on grounds 1B and 2. Ground 3 has only been raised subsequently. There are therefore before me the substantive application on Ground 1A, and applications for permission to proceed in respect of Grounds 1B, 2 and 3, the first two being by way of renewal. It has been sensibly agreed that the applications for permission be dealt with on a rolled-up basis.
At this hearing Richard Kimblin has appeared for the Claimants, and Timothy Leader for the Council. I thank them both for their focused and helpful submissions.
The Legal Principles
The relevant law in relation to these grounds is well-established and uncontroversial.
Section 70(2) of the Town and Country Planning Act 1990 provides that, in dealing with an application for planning permission, the planning authority must have regard to all "materials considerations". What constitutes a material consideration is a matter of law: relevant policy is a material consideration. "The development plan" for an area is defined by section 38 of the Planning and Compulsory Purchase Act 2004 to include adopted local plans. 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.
Planning decision-makers therefore have to have due regard to relevant policies; but they cannot do so unless they understand those policies. They must therefore proceed on the basis of a proper understanding of the relevant policies as properly construed, the true interpretation of such policies being a matter of law for the court. Where they have misunderstood or misapplied a policy, or failed to take reasonable steps to acquaint themselves with the information that will enable them to give proper informed answers to the material questions, that may found a challenge to their decision, if it is material, i.e. if their decision would or might have been different if they had properly understood and applied the guidance (see Gransden & Co Ltd v Secretary of State for the Environment (1985) 54 P&CR 86 at page 94 per Woolf J, R (MidCounties Co-operative Society Limited) v Forest of Dean District Council [2007] EWHC 1714 (Admin) per Collins J, and Tescos Stores Limited v Dundee City Council [2012] UKSC 13, at [17]–[23] per Lord Reed).
Whilst the planning decision-makers must take into account all material considerations, the weight to be given to such considerations is exclusively a matter of planning judgment for them. The planning authority is entitled to give a material consideration whatever weight, if any, it considers appropriate, subject only to its decision not being irrational in the sense of Wednesbury unreasonable ( Tescos Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759 at page 780F-G per Lord Hoffmann).
Each local planning authority delegates many of its functions to a planning committee, which acts on the basis of information provided by case officers in the form of a report. That is what happened in this case. Such a report usually also includes a recommendation as to how the application should be dealt with. An officer's report for a planning committee is not to be construed with the same exegesis as a statute. The questions to be asked by this court are whether the author properly identified the important planning issues to be considered and whether overall he fairly identified the material matters bearing upon those issues to enable the decision-makers in the committee to weigh the competing and public and private interest involved and come to an appropriately informed decision ( R (Zurich Assurance Limited trading as Threadneedle Property Investments) v North Lincolnshire Council [2012] EWHC 3708 (Admin) at [15] and the cases referred to therein). In performing that function, the officers are also exercising their planning judgment. It is also to be borne in mind that reports are written by officers for members of planning committees, and that they are therefore addressed to a "knowledgeable readership", which can be presumed generally to know the area over which they operate and the planning regime ( ( R v Mendip District Council ex parte Faber 20000 80 P&CR 500 per Sullivan J as he then was; see also Oxton Farms Samuel Smith Old Brewery (Tadcaster) v Selby District Council (18 April 1997) 1997 WL 1106106 per Pill LJ.
Absent any indication to the contrary, it can usually be assumed that a committee which agrees with an officer's recommendation, also agrees with that officer's reasoning: in particular, in those circumstances, the committee can be assumed to agree which the officer's analysis of relevant policies ( R (Mevagissey Parish Council v Cornwall Council [2013] EWHC 3684 (Admin) at [43(iv)]).
The Relevant Policies
National planning policy has, since March 2012, largely been set out in the National Planning Policy Framework ("the NPPF"). In line with section 39 of the 1990 Act, paragraph 14 provides that.
"At the heart of the [NPPF] is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan-making and decision-taking.
…
For decision-taking this means:
• approving development proposals that accord with the development plan without delay; and
• where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless:
• any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or
• specific policies in this Framework indicate development should be restricted."
"Sustainable development" is not specifically defined in the NPPF, but is usually defined terms of development which meets the needs of the present without the compromising ability of future generations to meet their own needs. It is said in paragraph 6 of the NPPF that the policies set out in paragraphs 18 to 219, taken as a whole, constitute the Government's view of what sustainable development means in practice for the planning system. "Sustainability" therefore inherently requires a balance to be made of the factors that favour the proposed development and those that favour refusing it, in accordance with the relevant and national local policies.
Paragraph 216 of the NPPF is also potentially relevant to this claim. It provides that, in addition to the adopted local plan, planning decision-takers may also give weight to relevant policies in emerging plans according to the stage of preparation, the extent to...
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