R (on the application of XY) v Maidstone Borough Council
| Jurisdiction | England & Wales |
| Judge | Rhodri Price Lewis |
| Judgment Date | 17 June 2016 |
| Neutral Citation | [2016] EWHC 1436 (Admin) |
| Date | 17 June 2016 |
| Docket Number | Case No: CO/4214/2015 |
| Court | Queen's Bench Division (Administrative Court) |
[2016] EWHC 1436 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Rhodri Price Lewis QC
(Sitting as a Deputy High Court Judge)
Case No: CO/4214/2015
and
Mr Andrew Parkinson (instructed by Richard Buxton Environmental and Public Law Solicitors) for the Claimant
Mr Mark Beard (instructed by Sharpe Pritchard LLP) for the Defendant
The Interested Party did not appear
Hearing date: 17 May 2016
The Deputy Judge ( Rhodri Price LewisQC):
Introductionxs
Permission to bring this judicial review was given by Collins J on the 15 th October 2015 when he also made an anonymity order in respect of the Claimant. The Claimant seeks judicial review of the decision by Maidstone Borough Council, the local planning authority for their area, to grant planning permission for the "change of use of land from grazing to residential for one caravan and a touring caravan and one utility shed" on land named on the decision notice as Blossom, Maplehurst Lane, Frittenden Road, Staplehurst, Kent. That planning permission was granted on the 13 th July 2015. The applicant for planning permission was Mr Thomas Smith, the Interested Party. Mr Smith has taken no part in these proceedings. The land in respect of which the planning permission was granted has been referred to as "the Blossom site" throughout these proceedings.
That site forms part of a wider area known as Perfect Place on which planning permission was granted in July 2014 for the retention of a mobile home, a touring caravan and a barn subject to a condition ("Condition 1") that no more than one static residential caravan and one touring caravan should be stationed on the Perfect Place site at any one time.
The Blossom site lies at the southern end of Staplehurst village within a designated Special Landscape Area where it is the policy of the Local Plan that landscape considerations will normally take precedence over other matters. It is accessed off Maplehurst Lane.
It forms the western end of the land known as Perfect Place which itself extends from Maplehurst Lane towards the east over an area of 2.2 hectares. Planning permission had been granted on appeal in 2006 for the use of Perfect Place for the keeping of horses and the stationing of caravans and homes for residential purposes subject to a condition that the use was to be personal to Mr Perfect, his wife and children and that the use was to be for a limited period of three years. There was a further condition that no more than two caravans should be stationed on the site at any one time of which only one was to be a static caravan or mobile home. In 2009 the Council granted a further temporary planning permission. On the 1 st July 2014 the Council granted the permanent planning permission referred to above.
To the east of the Blossom site and also within the Perfect Place site are two areas used for stationing mobile homes. Applications for planning permission for the retention of those mobile homes were made in respect of both those sites in February 201Those applications have not been determined.
To the east of the Perfect Place site and fronting onto Park Wood Lane is an area known as Parkwood Stables. Planning permission was granted on appeal in June 2013 for the use of that land for residential purposes involving the stationing of two mobile homes, three touring caravans and two utility blocks for two gypsy families. A condition requiring the submission and approval of schemes for the layout of the site has not been complied with and an application was made in 2015 to regularise the use despite the breach of that condition.
To the north of the Blossom site and also fronting Maplehurst Lane are four sites also used for stationing mobile homes. Applications for planning permission were made in respect of three of those sites in 2013 but those applications have also not been determined. No enforcement action has been taken in respect of any of those sites where mobile homes have been stationed. Personal planning permission was granted for stationing one caravan in respect of the most northerly of those sites in October 2012 but an application to increase the number of caravans to four was refused in July 2015 on the basis that there was no additional household being created and so there was no over-riding new need. The Claimant has identified seven breaches of planning control on land near the Blossom site at the time of the decision under challenge and indeed at the time of the hearing and the Defendant does not disagree with that analysis.
The Blossom application was reported to the Council's Planning Committee on 18 th June 2015, with a recommendation for approval. The planning officer's report to the committee runs to 10 pages. It deals with the site description, the proposal before the committee and the relevant planning history. It identifies relevant government and local policies. It explains that no representations had been received from neighbours but that the Staplehurst Parish Council objected to the application. The officer then set out his appraisal which he began by reminding the members of the committee that section 38(6) of the Planning and Compulsory Purchase Act 2004 requires all planning applications to be determined in accordance with the development plan unless material considerations indicate otherwise. He then identified the key issues in relation to the proposal before them as "(a) principle (b) personal circumstances (c) impact on rural character and SLA (c) [sic] impact on the outlook and amenity of properties overlooking and abutting the site (d) highway and parking considerations and (e) sustainability." The Claimant accepts that those were the key issues before the committee. The officer then went on in section 7 of his report to deal with each of those key issues in turn and finally in section 8 expressed his conclusions as follows:
"—The applicant's personal circumstances justify both the development that has taken place and the need to be at this location.
— Given the acknowledged shortfall in meeting the demand for new gypsy and traveller sites granting planning permission here will make a material contribution in satisfying the identified need for such sites while helping to minimise the pressure for similar development in more sensitive locations.
— No demonstrable harm to the rural character of the area and that of the SLA.
— Will not result in harm to the outlook or amenity of any nearby dwellings.
— Is acceptable in highway and parking terms
— No objection on sustainability grounds."
The Planning Committee resolved to grant planning permission and on the 13 th July 2015, the Council granted planning permission for the development.
The Claimant contends, in brief, that in granting planning permission the following errors of law occurred. Firstly, the members of the planning committee failed to have regard to the status in planning terms of the nearby gypsy sites which were either in unlawful use or in one case subject to a personal planning permission. Secondly, the committee failed to take into account that in granting planning permission in 2014 for the Perfect Place site the Council had concluded that more than one static caravan or touring caravan on that overall site would have an unacceptable visual impact. Thirdly, it is contended that the committee failed to take reasonable steps to obtain relevant information before concluding that Mr Smith was a gypsy. Fourthly, it is submitted that the committee failed to have regard to the evidence base for the emerging local plan as to the sustainability of the site. Fifthly, it is contended that the Council erred in failing to treat the current application and the applications then pending before it on the neighbouring sites as one project and therefore the application was a "Schedule 2 application" for the purposes of Regulation 7 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 and the Council should have adopted a screening opinion under Regulation 5.
This is the order in which the grounds of challenge were dealt with in submissions even though that was not the order in which they were pleaded and I shall consider them in the order in which they were argued in this judgment.
Legal principles for reviewing decisions taken by local planning authorities
The general approach to challenges to decisions of local planning authorities to grant planning permission were recently summarised by Holgate J in R (oao Nicholson) v Allerdale Borough Council [2015] EWHC 2510 (Admin) and I gratefully adopt his summary, as follows:
"10. The grounds of challenge in this case primarily involve criticisms of the officer's report. The relevant principles upon which the High Court will approach a challenge of this nature have been set out in a number of cases and were summarised in R (Luton Borough Council) v Central Bedfordshire Council [2014] EWHC 4325 (Admin) at paragraphs 90 to 98.
11. For the purposes of the present application I would emphasise the following principles drawn from that summary:-
(i) In the absence of contrary evidence, it is a reasonable inference that members of the planning committee follow the reasoning of the officer's report, particularly where a recommendation is accepted;
(ii) The officer's report must be read as a whole and fairly, without being subjected to the kind of examination which may be applied to the interpretation of a statute or a contract;
(iii) Whereas the issue of whether a consideration is relevant is a matter of law, the weight to be given to a material consideration is a matter of planning judgment, which is a matter for...
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