![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Administrative Court) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Butler, R (On the Application Of) v East Dorset District Council (007) Ltd [2016] EWHC 1527 (Admin) (28 June 2016) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2016/1527.html Cite as: [2016] EWHC 1527 (Admin) |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
QUEEN'S BENCH DIVISION
PLANNING COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
(SITTING AS A DEPUTY HIGH COURT JUDGE)
____________________
THE QUEEN (on the application of Katharine ![]() |
Claimant |
|
- and - |
||
EAST DORSET DISTRICT COUNCIL |
Defendant |
|
-and- GOOD ENERGY MAPPERTON FARM SOLAR PARK (007) lTD |
Interested Party |
____________________
Mr Martin Edwards for the Defendant
Hearing date: 18 May 2016
____________________
Crown Copyright ©
The Deputy Judge (Rhodri Price Lewis QC) :
Introduction
Preliminary Issue:
"1. I have some concern that to leave indication of a possible claim until the 6 weeks are nearly up and then to do no more than issue a PAP which does not contain the detail required for a claim but expect a stay may in effect be a means of extending the 6 week period. But it is arguable that the important point is to notify a claim within 6 weeks and what is proposed can save costs.
2. The propriety of the approach adopted in this case may need some judicial consideration following argument. It must be appreciated that any response by the defendant or the interested party will be treated as a preliminary Acknowledgment of Service and so if permission is not granted can affect an award of costs.
3. In the circumstances I am prepared to comply with the claimant's application to the following extent:
(1) The defendant and the IP (if desired) should respond to the PAP letter which will stand as the grounds within 21 days.
(2) The claimant must if the claim is to proceed lodge amended grounds and any further evidence (if any) within 14 days of receipt of the defendant's response.
(3) The defendant and IP may serve an amended Acknowledgment of Service within 21 days."
The Factual Background:
Legal principles for reviewing decisions taken by local planning authorities
"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: -
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;
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;
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 the planning committee, not the court;
"An 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" per Lord Justice Judge (as he then was) in Samuel Smith Old Brewery (Tadcaster) v Selby District Council (18 April 1997)."
"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).
"The purpose of an officer's report is not to decide the issue, but to inform the members of the relevant considerations relating to the application. It is not addressed to the world at large, but to council members who, by virtue of that membership, may be expected to have substantial local and background knowledge. There would be no point in a planning officer's report setting out in great detail background material, for example, in respect of local topography, development plan policies or matters of planning history if the members were only too familiar with that material. Part of a planning officer's expert function in reporting to the committee must be to make an assessment of how much information needs to be included in his or her report in order to avoid burdening a busy committee with excessive and unnecessary detail." (emphasis added)
(Sullivan J in the Ex parte Fabre case at page 509)
Likewise in Morge v Hampshire County Council [2011] UKSC 2 at paragraph 36, Baroness Hale of Richmond said:
"Democratically elected bodies go about their decision-making in a different way from courts. They have professional advisers who investigate and report to them. Those reports obviously have to be clear and full enough to enable them to understand the issues and make up their minds within the limits that the law allows them. But the courts should not impose too demanding a standard upon such reports, for otherwise their whole purpose would be defeated…"
12. … the observations of Sullivan J (as he then was) in R (Newsmith Stainless Ltd) v Secretary of State [2001] EWHC Admin 74 (at paragraphs 6 to 8) on perversity challenges to the decisions of planning Inspectors are also applicable where challenges of that nature are made to the decisions of a local authority.
13. Thus, an application for judicial review is not an opportunity for a review of the planning merits of the Council's decision. Although an allegation that such a decision was perverse, or irrational, lies within the scope of proceedings under CPR Part 54, "the Court must be astute to ensure that such challenges are not used as a cloak for a rerun of the arguments on the planning merits" (Newsmith at paragraph 6). In any case where an expert tribunal is the fact finding body, as in the case of a planning committee (see Cranston J in R (Bishops Stortford Federation) v East Herts D.C. [2014] PTSR 1035 at paragraph 40), the threshold for Wednesbury unreasonableness is a difficult obstacle for a Claimant to surmount, which is greatly increased in most planning cases by the need for the decision-maker to determine not simply questions of fact, but a series of planning judgments. Since a significant element of judgment is involved, there will usually be scope for a fairly broad range of possible views, none of which could be categorised as unreasonable (Newsmith at paragraph 7). Moreover, the decision may also be based upon a site inspection, which may be of critical importance. Against this background, a Claimant alleging that a decision-maker has reached a Wednesbury unreasonable conclusion on matters of planning judgment "faces a particularly daunting task" (Newsmith at paragraph 8).
14. On the other hand, as Mr. Dan Kolinsky QC (who appeared on behalf of the Claimant) pointed out, irrationality challenges are not confined to the relatively rare example of a "decision which simply defies comprehension", but also include a decision which proceeds from flawed logic (relying upon R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213, 244 at paragraph 65)."
"17 It has long been established that a planning authority must proceed upon a proper understanding of the development plan: see, for example, Gransden & Co Ltd v Secretary of State for the Environment (1985) 54 P & CR 86, 94 per Woolf J, affd (1986) 54 P & CR 361 ; Horsham DC v Secretary of State for the Environment (1991) 63 P & CR 219 , 225–226 per Nolan LJ. The need for a proper understanding follows, in the first place, from the fact that the planning authority is required by statute to have regard to the provisions of the development plan: it cannot have regard to the provisions of the plan if it fails to understand them. It also follows from the legal status given to the development plan by section 25 of the 1997 Act [section 38(6) of the 2004 Act in England and Wales]. The effect of the predecessor of section 25, namely section 18A of the Town and Country (Planning) Scotland Act 1972 (as inserted by section 58 of the Planning and Compensation Act 1991 ), was considered by the House of Lords in the case of City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33, [1997] 1 WLR 1447 . It is sufficient for present purposes to cite a passage from the speech of Lord Clyde, with which the other members of the House expressed their agreement. At p 44, 1459, his Lordship observed:
"In the practical application of section 18A [now section 38(6)] 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."
18 In the present case, the planning authority was required by section 25 [now section 38(6)] to consider whether the proposed development was in accordance with the development plan and, if not, whether material considerations justified departing from the plan. In order to carry out that exercise, the planning authority required to proceed on the basis of what Lord Clyde described as "a proper interpretation" of the relevant provisions of the plan… in principle, in this area of public administration as in others (as discussed, for example, in R (Raissi) v Secretary of State for the Home Department [2008] QB 836 ), policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context.
19 That is not to say that such statements should be construed as if they were statutory or contractual provisions. Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse ( Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 , 780 per Lord Hoffmann). Nevertheless, planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean."
Ground 1: Failure properly to interpret policy HE1 of the Core Strategy:
"Heritage assets are an irreplaceable resource and will be conserved and where appropriate enhanced for their historic significance and importance locally to the wider social, cultural and economic environment.
The significance of all heritage assets and their settings (both designated and non-designated) will be protected and enhanced especially elements of the historic environment which contribute to the distinct identity of Christchurch and East Dorset. Such key historic elements include the market towns of Wimborne Minster and Christchurch; Christchurch Quay; Highcliffe and Christchurch Castles; 11th Century Christchurch Priory Church and Saxon Mill; site of civil war siege in 1645; the setting of Wimborne Minster; significant Neolithic, Iron Age and Roman archaeological landscape; and prominent estates such as Cranborne and Wimborne St Giles.".
"The Council's Conservation Officer advises that the setting of the very northern end of the Mapperton Conservation Area is likely to be slightly affected by the proposal. There is also potential for views of the site to be experienced from Charborough Tower and Park.
Officers consider the significant separation distance between the designated heritage assets and the site, together with the amount and type of intervening vegetation and varied topography is likely to result in less than substantial harm on these designated heritage assets. Consequently paragraph 134 of the NPPF is relevant, which requires the harm to be weighed against the public benefits of the proposal.
As some harm has been found to designated heritage assets, Section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990 requires special regard to be given to the impact on the heritage assets in the planning assessment, which gives additional weight to this impact. In making this assessment Officers are mindful of the decision of the Court of Appeal in Barnwell Manor Wind Energy v East Northants DC and others [2014] EWCA Civ 137 to the effect that officers are aware of the need to give considerable weight and importance to the desirability of preserving the setting of heritage assets.
Officers consider the substantial benefits of the development arising from the significant renewable energy production, contribution to Dorset's and the UK's renewable energy production targets; producing significant levels of energy from a non-polluting source; improving the natural environment for future generations, and providing energy security ( as it will be produced in the UK and not rely on overseas sources), sufficiently outweigh the less than substantial harm that may arise for the aforementioned designated historic assets. This balancing exercise accounts for the extra weight that is required to be attached to the harm to designated historic assets.
Therefore there is considered to be no significant adverse impact on historic assets and their settings in terms of the built heritage in the site's vicinity, and the proposal accords with policy HE1 of the CS, and the advice in Chapter 12 of the NPPF."
Ground 2 – Failure to consider whether the proposed development complied with the heritage criterion of policy ME5 of the Core Strategy
"The Councils encourage the sustainable generation of energy from renewable and low carbon sources where adverse social, environmental and visual impacts have been minimised to an acceptable level.
Proposals for renewable energy apparatus will only be permitted where:
…
- It is in accordance with Policy ME1 regarding adverse ecological impacts upon the integrity of priority habitats or local populations of priority species and opportunities for biodiversity enhancement.
…
- It avoids harm to the significance and settings of heritage assets."
Ground 3 – Failure to apply section 38(6) of the 2004 Act
"28. … It is up to the decision-maker how precisely to go about the task, but if he is to act within his powers and in particular to comply with the statutory duty to make the determination in accordance with the development plan unless material considerations indicate otherwise, he must as a general rule decide at some stage in the exercise whether the proposed development does or does not accord with the development plan. I say "as a general rule" because there may be exceptional cases where it is possible to comply with the section without a decision on that point: I have in mind in particular that if the decision-maker concludes that the development plan should carry no weight at all because the policies in it have been overtaken by more recent policy statements, it may be possible to give effect to the section without reaching a specific decision on whether the development is or is not in accordance with the development plan. But the possibility of exceptional cases should not be allowed to detract from the force of the general rule.
…
33. …It will be clear from what I have said above that in my view compliance with the duty under section 38(6) does as a general rule require decision-makers to decide whether a proposed development is or is not in accordance with the development plan, since without reaching a decision on that issue they are not in a position to give the development plan what Lord Clyde described as its statutory priority. To use the language of Lord Reed in Tesco Stores v Dundee City Council … they need to understand the nature and extent of any departure from the development plan in order to consider on a proper basis whether such a departure is justified by other material considerations."
"As with any planning application, determination must be made in accordance with the development plan (the Christchurch and East Dorset Core Strategy Part 1) unless material considerations indicate otherwise, as set out in Section 38 of the Planning and Compulsory Purchase Act 2004.
Officers consider that although the proposal does not fully accord with all the relevant policies of the development plan for the reasons set out in the report above (most importantly in terms of its impact on the AGLV and the temporary loss of flexibility of some good quality agricultural land), the combined weight in favour of the proposal from its provision of renewable energy; contribution to national energy security; avoidance of greenhouse gas emissions and air pollution; ecological enhancement, farm diversification and socio economic benefits is considered to be significantly greater than the weight to be afforded to the impact on the landscape; the less than substantial harm that arises for designated heritage assets (recognising the requirement to attach greater weight to the impact on these assets); the significant level of objections and loss of flexibility of good quality agricultural land."
Relief, Discretion and section 31(2A) of the Senior Courts Act 1981:
Ground 4: Failure to comply with regulation 24(1)(c)(iii) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011
"(1) Where an EIA application is determined by a local planning authority, the authority shall—
(a) in writing, inform the Secretary of State of the decision;
(b) inform the public of the decision, by local advertisement, or by such other means as are reasonable in the circumstances; and
(c) make available for public inspection at the place where the appropriate register (or relevant section of that register) is kept a statement containing—
(i) the content of the decision and any conditions attached to it;
(ii) the main reasons and considerations on which the decision is based including, if relevant, information about the participation of the public;
(iii) a description, where necessary, of the main measures to avoid, reduce and, if possible, offset the major adverse effects of the development; and
(iv) information regarding the right to challenge the validity of the decision and the procedures for doing so."
"The underlying statutory purpose of requiring local planning authorities to give a summary of their reasons for granting planning permission was to avoid the need for claimants to pursue a paper chase and to examine extrinsic evidence in order to ascertain what the reasons for granting planning permission really were."
Ground 5: "Tailpieces" on Conditions 6, 10, 11, 13 and 14
Conclusion: