R Sue Wyeth-Price v Guildford Borough Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 08 December 2020 |
| Neutral Citation | [2020] EWHC 3355 (Admin) |
| Date | 08 December 2020 |
| Docket Number | Case No: CO/746/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2020] EWHC 3355 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/746/2020
John Fitzsimons (instructed via Direct Access) for the Claimant
Robert Williams (instructed by Legal Services) for the Defendant
Stephen Morgan (instructed by Gateley Legal) for the Interested Party
Hearing dates: 17 & 18 November 2020
Approved Judgment
The Claimant applies for judicial review of the decision by the Defendant (“the Council”) to grant planning permission for the erection of 73 dwellings at Ash Manor, Ash Green, Guildford GU12 6HH (“the Site”).
The Claimant is a local resident and formerly the Chair of the Ash Green Residents' Association. The Council is the local planning authority for the area. The Interested Party (“IP”) is the developer of the Site and made the application for planning permission.
Permission to apply for judicial review was granted on the papers on 13 May 2020.
Summary of facts
The Site forms part of a strategic allocation within the Council's “Local Plan: Strategy and Sites (2015–2034)” which was adopted on 25 April 2019.
The Site is approximately 3.87 hectares in size, and it is currently laid to grass. It is used in part as a paddock for horses. It includes a number of trees which are protected by way of Tree Preservation Orders (“TPOs”). There is a large pond on the northern boundary of the Site.
Adjacent to the Site, near the pond, there is a small complex of historic buildings and farm structures, known as Ash Manor. The largest building within the complex is Grade II* listed and has been converted into two residential dwellings, known as Ash Manor and Old Manor Cottage. The Oast House lies to the south of it and its stables are Grade II listed. To the south of this is a further residential dwelling known as Oak Barn which is also Grade II listed. The significance of Ash Manor is derived from its historic and architectural interest as a moated manor house, thought to have thirteenth century origins, with successive phases of development dating to the sixteenth, seventeenth and mid-twentieth centuries. According to Historic England, the current agricultural and open character of the setting of Ash Manor is one that has remained constant through its history. It advised that the proposed development would cause harm to the setting of the heritage assets, assessed at less than substantial harm.
Two previous applications for planning permission for large residential developments at the Site had been unsuccessful. There were several iterations of the proposals in this application as the IP made amendments in an effort to address the concerns which had been raised, by consultees and objectors.
The planning officer's report recommended the grant of planning permission. However, the Planning Committee, at its meeting of 9 October 2019, deferred a decision in order to make a Site visit, “owing to the sensitivity of the site, the lack of coalescence with the village green, the proximity of the proposed development to significant heritage assets and the associated harm caused, the layout of the site and the mix of market housing which currently offered no one-bed houses”.
The Site visit took place on 3 December 2019. At its meeting on 4 December 2019, the Planning Committee was provided with a further report from the planning officer and some updating sheets. The further report advised, among other matters, that the scheme had now been reduced from 77 to 73 units; the open space buffer between the development and Ash Manor had been increased by 6 metres; and the apartment blocks had been reduced to two storeys from three. The planning officer considered the amendments were an improvement, and recommended that permission should be granted.
The Planning Committee noted the amendments to the scheme and decided to grant planning permission, stating:
“The Committee considered the application and agreed that the overall layout and reduction in the number of residential units proposed onsite represented a significant improvement. The new scheme had been reduced both in size and bulk and was more in keeping with the character of the surrounding area, enabling resident's [sic] greater enjoyment of their amenities.”
Numerous objections were received about the proposed development. Objections about the impact of the scheme on Ash Manor were received from, among others, local residents, the Ash Green Residents Association, the Parish Council and the MP for Surrey Heath, who said his constituents had raised profound concerns about the impact on Ash Manor.
Legal framework
Decision making
Section 70(2) of the Town and Country Planning Act 1990 (“TCPA 1990”) provides that the decision-maker shall have regard to the provisions of the development plan, so far as material to the application. Section 38(6) of the Planning and Compulsory Purchase Act 2004 (“PCPA 2004”) provides:
“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 R (CPRE Kent) v Dover District Council [2017] UKSC 79, [2018] 1 WLR 108, the Supreme Court held that there is no general duty to provide a statement of reasons for the grant of planning permission, although planning decision-makers must have rational reasons for the decisions which they make. The reasons for the decisions of planning committees are generally ascertainable from the planning officer's report and the minutes of planning committee meetings. However, where the planning committee's decision cannot be inferred from publicly available materials, typically where a planning committee has not followed the planning officer's recommendation, fairness and good administration may require that a statement of reasons be given (per Lord Carnwath at [56] – [60]).
In CPRE Kent, Lord Carnwath also considered the duty of a local planning authority to acquaint itself with the relevant information, and consider it when making its decisions. He said, at [62]:
“62 The Model Council Planning Code and Protocol …. contains …. the following advice:
“Do come to your decision only after due consideration of all of the information reasonably required upon which to base a decision. If you feel there is insufficient time to digest new information or that there is simply insufficient information before you, request that further information. If necessary, defer or refuse.”
This passage not only offers sound practical advice. It also reflects the important legal principle that a decision-maker must not only ask himself the right question but “take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly”: Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1065B. That obligation, which applies to a planning committee as much as to the Secretary of State, includes the need to allow the time reasonably necessary, not only to obtain the relevant information, but also to understand and take it properly into account.”
In my view, it is obvious that the public law duty to consider the relevant information, described by Lord Carnwath in CPRE Kent, may extend to an obligation to consider and engage with material evidence from a consultee, or an expert instructed by an applicant or an objector, depending on the facts of the particular case. In my view, the observations of Andrews J. in Pagham PC v Arun DC [2019] EWHC 1721 (Admin), at [55] – [56] do not suggest otherwise. However, a legal challenge to the extent of the inquiry undertaken will only succeed on conventional public law grounds: see R (Hayes) v Wychavon DC [2014] EWHC 1987 (Admin), per Lang J. at [29]–[31].
Planning officers' reports
An officer's report should be “…clear and full enough to enable them [the decision-maker] to understand the issues and make up their minds within the limits that the law allows them”: R (Morge) v Hampshire County Council [2011] 1 WLR 268 at [36].
The principles to be applied when considering a challenge to a planning officer's report were summarised by the Court of Appeal in R (Mansell) v Tonbridge & Malling BC [2019] PTSR 1452, per Lindblom LJ, at [42]:
“42. The principles on which the court will act when criticism is made of a planning officer's report to committee are well settled. To summarise the law as it stands:
(1) The essential principles are as stated by the Court of Appeal in R. v Selby District Council, ex parte Oxton Farms [1997] E.G.C.S. 60 (see, in particular, the judgment of Judge L.J., as he then was). They have since been confirmed several times by this court, notably by Sullivan L.J. in R. (on the application of Siraj) v Kirklees Metropolitan Borough Council [2010] EWCA Civ 1286, at paragraph 19, and applied in many cases at first instance (see, for example, the judgment of Hickinbottom J., as he then was, in R. (on the application of Zurich Assurance Ltd., t/a Threadneedle Property Investments) v North Lincolnshire Council [2012] EWHC 3708 (Admin), at paragraph 15).
(2) The principles are not complicated. Planning officers' reports to committee are not to be read with undue rigour, but with reasonable benevolence, and bearing in mind that they are written for councillors with local knowledge (see the judgment of Baroness Hale of Richmond in R. (on the application of Morge) v Hampshire County Council [2011] UKSC 2, at paragraph 36, and the judgment of Sullivan J., as he then was, in R. v Mendip District...
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