R Lensbury Ltd v Richmond-Upon-Thames London Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson,Lord Justice Sales |
| Judgment Date | 11 August 2016 |
| Neutral Citation | [2016] EWCA Civ 814 |
| Docket Number | Case No: C1/2016/2236 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 August 2016 |
[2016] EWCA Civ 814
Lord Justice Beatson
and
Lord Justice Sales
Case No: C1/2016/2236
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE (QUEEN'S BENCH)
MR JUSTICE SUPPERSTONE
CO/5231/2015
Royal Courts of Justice
Strand, London, WC2A 2LL
Christopher Lockhart-Mummery QC (instructed by Howes Percival LLP) for the Appellant
Daniel Kolinsky QC for the Respondent
Hearing date: 4 th August 2016
Approved Judgment
This is an appeal from the order of Supperstone J (reflecting his judgment [2016] EWHC 980 (Admin)) in proceedings brought by the Appellant seeking judicial review of the grant of planning permission by the Respondent ("the Council") for a development at Teddington Weir, Teddington Lock, Teddington on the River Thames. Teddington Lock is in an area designated as Metropolitan Open Land ("MOL") and is in a conservation area. The proposed development is for the installation of a 3-turbine hydro-electric generation facility to replace a section of the existing weir. This would involve the construction of a plant room above the turbines. The judge dismissed the claim for judicial review.
The application for planning permission was submitted on 2 September 2014. It came before the Council's planning committee on 15 April 2015. The Council's planning officers prepared a report for that committee meeting ("the April report") which set out a detailed assessment of the application and the policy context, with a recommendation for approval. It is common ground that, so far as is relevant for these proceedings, this report is to be taken to set out the reasons of the planning committee for granting planning permission for the development.
At the meeting on 15 April 2015 the planning committee called for further examination to be carried out, in particular in relation to the question of noise. Those further matters were resolved to the satisfaction of the Council by September 2015 and on 17 September 2015 the planning permission in question in these proceedings was granted.
At first instance and in this appeal the Appellant submits that the Council failed to comply with its duty under section 38(6) of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") in that it failed to have proper regard to provisions in the development plan. The Appellant also advanced other grounds below which were dismissed by the judge and in relation to which there is no appeal.
Legal and policy framework
Section 38(6) of the 2004 Act 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."
In this court, as below, the relevant legal principles in relation to a claim of breach of this duty were not in issue. The judge helpfully sets them out at paras. [18]–[22]:
"18. In City of Edinburgh Council v Secretary of State for Scotland [1977] 1 WLR 1447, Lord Clyde stated at 1459–1460 (in relation to the Scottish version of s.38(6) of the 2004 Act):
"In the practical application of section 18A it will obviously be necessary for the decision maker to consider the development plan, identify any provisions in it 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. He will also have to consider whether the development proposed in the application before him does or does not accord with the development plan. There may be some points in the plan which support the proposal but there may be some considerations pointing in the opposite direction. He will require to assess all of these and then decide whether in light of the whole plan the proposal does or does not accord with it…
… in my view it is undesirable to devise any universal prescription for the method to be adopted by the decision maker, provided always of course that he does not act outwith his powers. Different cases will invite different methods in the detail of the approach to be taken and it should be left to the good sense of the decision maker, acting within his powers, to decide how to go about the task before him in the particular circumstances of each case. … The precise procedure followed by any decision maker is so much a matter of personal preference or inclination in light of the nature and detail of the particular case that neither universal prescription nor even general guidance are useful or appropriate."
19. In Tesco Stores Ltd v Dundee City Council [2012] UKSC 13, Lord Reed stated (at para 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 material considerations."
(See also R (Hampton Bishop Parish Council) v Herefordshire Council [2015] 1 WLR 2367 at para 33, per Richards LJ).
20. Recently in Tiviot Way Investments Ltd v Secretary of State for Communities and Local Government [2015] EWHC 2489 (Admin) Patterson J stated (at para 27):
"It is axiomatic that the decision maker does not have to deal with each and every policy that has been raised by the parties during an appeal. That is not the Claimant's case. Rather, it is submitted a finding of compliance or conflict with the development plan and the basis for it needs to be made so that the decision maker can proceed to undertake the planning balance in an informed way. I agree. Such a step is not just form. Rather, it is an essential part of the decision-making process, so that not only the decision maker but also the reader of the Decision Letter is aware and can understand that the duty imposed under section 38(6) has been discharged properly by the decision maker."
21. The judge added (at para 30) that the decision maker has to make a decision on the right basis:
"That does not mean a mechanistic approach of judging the proposals against each and every policy that may be prayed in aid of a development or against it, but an evaluation of main policy areas within the development plan that are relevant to the proposal to be determined and an assessment of how the proposal [fares] against them. That can be shortly stated and the process to be followed is for the individual decision maker. But it needs to be clear at the culmination of the decision-taking process what the eventual judgment is against the development plan as a whole. Only by carrying out that exercise can the next step of evaluating the planning balance be properly undertaken."
22. An overall conclusion that the development proposed is in accordance with the development plan can be implied from a fair reading of a decision letter as a whole (see Dartford BC v Secretary of State for Communities and Local Government [2014] EWHC 2636 (Admin), per Patterson J at paras 39–42; Gill v Secretary of State for Communities and Local Government [2015] EWHC 2660 (Admin), per Rhodri Price-Lewis QC, sitting as a deputy High Court Judge, at paras 22–24; and R (Kverndal) v LB Hounslow [2015] EWHC 3084 (Admin) at paras 63–64; and see also Hampton Bishop Parish Council at paras 41–42)."
In the decision of this court in Secretary of State for Communities and Local Government v BDW Trading Ltd [2016] EWCA Civ 493, which post-dates the judgment below, Lindblom LJ helpfully summarised the principles to be derived from the authorities in this way at paras. [20]–[23]:
'20. Without seeking to be exhaustive, I think there are five things one can fairly say in the light of the authorities.
21. First, the section 38(6) duty is a duty to make a decision (or "determination") by giving the development plan priority, but weighing all other material considerations in the balance to establish whether the decision should be made, as the statute presumes, in accordance with the plan (see Lord Clyde's speech in City of Edinburgh Council, at p.1458D to p.1459A, and p.1459D-G). Secondly, therefore, the decision-maker must understand the relevant provisions of the plan, recognizing that they may sometimes pull in different directions (see Lord Clyde's speech in City of Edinburgh Council, at p.1459D-F, the judgments of Lord Reed and Lord Hope in Tesco Stores Ltd. v Dundee City Council [2012] UKSC 13, respectively at paragraphs 19 and 34, and the judgment of Sullivan J., as he then was, in R. v Rochdale Metropolitan Borough Council, ex p. Milne [2001] JPL 470, at paragraphs 48 to 50). Thirdly, section 38(6) does not prescribe the way in which the decision-maker is to go about discharging the duty. It does not specify, for all cases, a two-stage exercise, in which, first, the decision-maker decides "whether the development plan should or should not be accorded its statutory priority", and secondly, "if he decides that it should not be given that priority it should be put aside and attention concentrated upon the material factors which remain for consideration" (see Lord Clyde's speech in City of Edinburgh Council, at p.1459H to p.1460D). Fourthly, however, the duty can only be properly performed if the decision-maker, in the course of making the decision, establishes whether or not the proposal accords with the development plan as a whole (see the judgment of Richards L.J. in R. (on the application of Hampton Bishop Parish Council) v Herefordshire Council [2014] EWCA Civ 878, at paragraph 28, and the judgment of Patterson J. in Tiviot Way Investments Ltd. v...
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Table of Cases
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