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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Davison, R (on the application of) v Elmbridge Borough Council  EWHC 1409 (Admin) (02 May 2019)
Cite as:  EWHC 1409 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R (oao Matthew Davison)
|- and -
|Elmbridge Borough Council
Mr Zack Simons (instructed by Head of Legal Services Elmbridge Borough Council) for the Defendant
Crown Copyright ©
The Hon. Mrs Justice Thornton :
The 2015 Planning Officer's report (Permission 1) – 4 June 2015
"90 the physical size of the proposed pavilion compared to the existing buildings means that it would have a greater impact on the openness of the greenbelt compared to the existing buildings. While it may be appropriate development an assessment must be made in terms of whether the proposal preserves the openness of the Belt. The proposed landscaping in the amended scheme involves the creation of a series of landforms around the perimeter of the site to enhance the character of the informal open space and will assist in screening activity within the site from certain viewpoints. Whilst there would be a larger area of formal enclosed sports facilities it is not considered that the impact on the openness of the Green Belt would be significant.
91 the existing buildings … are of poor quality and are no longer considered to be fit for purpose. All are close to the northern boundary, approximately 33-50m from the River Thames…
The buildings, including those removed, had a combined footprint of 785sqm, volume of 2100m³ an average height of approximately 2.7 m. The proposed pavilion has a gross external area, excluding seating, of 1674sqm and will be 56m in length and 29m in width with a height of 8.7m. However, it will be located within the centre of the site. In the amended scheme the landscape buffer has been increased in width to move the pitches and athletics ground further from the river.
94 The proposed pavilion is significantly smaller in scale than the outline permission has been granted under 2012/1185 and therefore it is considered that the proposal would have less impact on the openness of the Green Belt than the previous.
95 Taking Green Belt policy as a whole the proposals comprise development which is appropriate within the Green Belt. There will be limited adverse impact on landscape and visual amenity and openness of the Green Belt, however there will also be significant benefits in terms of facilitating the beneficial use of land within the Green Belt by providing significant opportunities for public access and outdoor sport and recreation by improving the damage land."
The EIA Statement of Reasons for granting permission ("Permission 1") – undated but early 2016
"The building comprise development which is appropriate within the Green Belt in line with para. 89 and 90 the NPPF…. The function of the pavilion will be ancillary and appropriate to the use of the site football and athletics. There will be a limited adverse impact on landscape and visual amenity and openness of the Green Belt, however there will also be significant benefits in terms of facilitating the beneficial use of land within the Green Belt by providing significant opportunities for public access and outdoor sport and recreation by improving damage land which supported by para. 81 of the NPPF.
It is concluded that the proposal represents appropriate development within the Green Belt the proposal is not considered to have a significant adverse impact on the openness of the Green Belt or the amenity of nearby properties."
The 2017 Planning Officer's report (Permission 2) – 12 January 2017
"105 The physical size of the proposed pavilion compared to the previous buildings mean that its size, height, bulk and mass is greater than the previous buildings. The buildings, including those removed had a combined footprint 785sqm, volume of 2100m³ and average height of approximately 2.7m. The proposed pavilion has a gross external area, excluding seating of 1674sqm and will be 56m in length and 29m in width with a height of 8.7m. The site of siting of the pavilion away from the river reduces the prominence of the main built development on the site. It would be located within the centre of the site whereas the previous buildings were near the north-western boundary visible from the road and the River Thames towpath. The purpose of the building is clearly ancillary to outdoor sport and therefore the building would be associated with the outdoor use. On balance, it is considered that the pavilion would preserve the openness of the Green Belt.
106 The proposed landscaping involves the creation of a series of landforms around the perimeter of such a site to enhance the character of the informal open space will assist in screening activity within the site from certain viewpoints. The proposal would result in the replacement of a slightly undulating landscape with a flatter landscape which would have landscape bunds and additional planting along the north-western boundary. Whilst there would be a larger area of formal enclosed sports facilities, and would limit views across the site, it is considered that the landscaping would preserve the openness of the Green Belt.
108 The two main football pitches and the athletics track would be artificial surfaces and are considered to preserve the openness the Green Belt.
109 In terms of any other external facilities, there would be an increase in the number and height of floodlit floodlight columns compared to the previous football club. However, due to their slender nature, it is considered that the floodlights would preserve the openness of the Green Belt. It is noted that the Walton Casuals site had 8 flood lights which were closer to the north west boundary from the proposed athletics floodlights.
110 The proposed car park and associated car parking access road lighting would also preserve the openness of the Green Belt.
111 On the basis of its scale and development footprint, whilst taking account of the previous development on the site in the context of neighbouring buildings, the proposed development is considered to preserve the openness of the Green Belt.
112 If members which take the view that the built development as part of the proposal are not appropriate facilities for outdoor sports and outdoor recreation, that it conflicts with any of the 5 purposes of including land within the greenbelt, it does not minimise the impact on the greenbelt under the policy DM 17 or it fails to preserve the openness of the greenbelt, then the proposal constitutes inappropriate development within the greenbelt."
The judgment in R(Boot) v Elmbridge Borough Council (Permission 1) – 16 January 2017
"25. Mr Parkinson contends that the question of law raised by the Claimant's first ground of challenge is whether a new sports facility can be appropriate development even if it causes harm to the openness and purposes of the Green Belt.
26. He suggests this is because the Defendant found that the new stadium would cause harm to the openness and purposes of the Green Belt (see OR95 and 177, and the Statement of Reasons), but (despite this) found it was appropriate development and complied with paragraph 89 of the NPPF.
Mr Parkinson submits that the Defendant's interpretation of the policy is wrong. He contends that if a new sports facility causes harm to the openness of the Green Belt (even limited harm) it is not appropriate development for four main reasons:…
39. Mr Parkinson submits that West Lancashire establishes that if a proposal has an adverse impact on openness, the "inevitable conclusion" (see para 22 of the judgment) is that it does not comply with a policy that requires openness to be maintained. A decision maker does not have "any latitude" to find otherwise, based on the extent of the impact. In the present case the Defendant concluded that there was an adverse impact on openness, but nevertheless granted permission without giving consideration to whether under paras 87 and 88 of the NPPF there were very special circumstances that would justify it.
40. I accept Mr Parkinson's submissions. In my judgment the Defendant erred in its interpretation of paragraph 89 of the NPPF."
The Planning Officer's update report following the Court's judgment (Permission 2) – 17 January 2017
"The court found that the local planning authority had erred in law in advising the previous proposal had limited harm on the openness of the Green Belt but still preserved the openness of the greenbelt. The court concluded that it is not possible to have limited harm to the Green Belt reserve openness when para.89 of the NPPF is considered.
The report relating to the current application concludes that the proposal complies with para.89 of the NPPF…
The judgement is a material consideration to the current application. The decision is based on the detailed drafting of the officer report relating to consideration of the Green Belt. The current planning application requires consideration on its own merits and there are a number of changes to the scheme, as explained within the officer report. The officer report has given extended consideration to para.89 of the NPPF and the issue of preserving the openness the Green Belt."
The Minutes of the Planning Committee Meeting (Permission 2)
"Prior to the introduction of the application by the Planning Officer, the Chairman invited the Law Practice Manager to provide some guidance to the Committee on their role and to advise on the outcome of the Judicial Proceedings that had been delivered on 16 January 2017….
The Law Practice Manager advised that the role of Members of the Planning Committee that evening was to consider the planning merits of the Sports Hub application before them. The application was a new application and therefore should be considered on its own merits.
It was acknowledged that the scheme itself is very similar to one previously agreed by the Planning Committee, however, there were some minor variations to layout, lighting columns etc., and the Law Practice Manager advised that these matters have been addressed in the Planning Officer's report.
The Law Practice Manager advised that members were aware that the previous permission for the site had been quashed on 16 January 2017, following a Judicial Review. Members of the Committee, including those attending as temporary substitutes had been sent copies of the High Court decision and had also been provided with a short briefing note on the judgement in the context of the application before them that evening. The decision had been on a narrow point of policy interpretation and did not go into the merits of the application.
Judgement has been handed down on Monday 16 January 2017 and quashed the previous planning permission (2015/0949) relating to the Elmbridge Sports Hub, Waterside Drive. That application was the one under which works are been undertaken to date.
The Judge in the High Court found that the Local Planning Authority had erred in law in the test applied in the Officer's report, and stating the previous proposal had limited harm on the openness of the Green Belt but still preserved the openness of the Green Belt. The Court concluded that it was not possible to have limited harm to the Green Belt preserve openness, and therefore it was contrary to paragraph 89 of the National Planning Policy Framework (NPPF), so the test had not been properly applied.
Members were advised that the judgement was a material consideration to the current application. The committee should have regard to the planning application before them that evening, on its own merits, all of which was explained in the Officer's report on what the Officer had done in his report that evening was to give extended consideration to paragraph 89 of the NPPF and the issue of preserving openness of the Green Belt.
Members debated the application before them and concluded that, for the reasons set out in the Planning Officer's detailed report, as updated, the proposed development was in accordance with the Development Plan when considered as a whole. The Committee were of the view that the proposed development was not inappropriate development in the Green Belt and that the proposal was compliant with NPPF policy in relation to the Green Belt."
The policy framework
"Provision of appropriate facilities for outdoor sport, outdoor recreation of the cemeteries as long as it preserves the openness of the greenbelt does not conflict with the purposes of including land within it."
Submissions on behalf of the Claimant
Submissions on behalf of the Defendant
The legal framework
The principle of consistency
"In this case the asserted material consideration is a previous appeal decision. It was not disputed in argument that a previous appeal decision is capable of being a material consideration. The proposition is in my judgment indisputable. One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency in the appellate process. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system. I do not suggest, and it would be wrong to do so, that like cases must be decided alike. An inspector must always exercise his own judgment. He is therefore free upon consideration to disagree with the judgment of another but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision.
To state that like cases should be decided alike presupposes that the earlier case is alike and is not distinguishable in some relevant respect. If it is distinguishable then it usually will lack materiality by reference to consistency although it may be material in some other way. Where it is indistinguishable then ordinarily it must be a material consideration. A practical test for the inspector is to ask himself whether, if I decide this case in a particular way, am I necessarily agreeing or disagreeing with some critical aspect of the decision in the previous case? The areas for possible agreement or disagreement cannot be defined but they would include interpretation of policies, aesthetic judgments and assessment of need. Where there is disagreement then the inspector must weigh the previous decision and give his reasons for departure from it. These can on occasion be short, for example in the case of disagreement on aesthetics. On other occasions they may have to be elaborate."
" It seems to me that a factor which is relevant to the duty to give reasons in planning decisions is the point which emerges more clearly in cases such as Flannery than in the planning cases, that the requirement to give reasons concentrates the mind and if fulfilled is likely to lead to a more soundly based decision (see Henry LJ in Flannery at p 381)…
 …it seems to me that by declining to comment, other than to refer to his own reasons already expressed, Mr Mead appears not to have faced up to his duty to have regard to the previous decision so far as it related to the point of principle as a material consideration. Omission to deal with the conflicting decision, as in the North Wiltshire case, might have been sufficient in itself. But Mr Mead's last sentence in para 8 suggests that he has not grasped the intellectual nettle of the disagreement, which is what is needed if he is to have had proper regard to the previous decision. Either he did not have a proper regard to it, in which case he has failed to fulfil the duty to do so, or he has done so but has not explained his reasons, in which case he has not discharged the obligation to give his reasons."
"58….. In my judgment the need for an express explanation of an apparent inconsistency between the decision under consideration and an earlier decision will depend on the circumstances. If the explanation for the inconsistency is obvious, a formal statement of it will be unnecessary. Where the inconsistency is stark and fundamental, as it seems to me it is in the present case, it will in my judgment usually be insufficient to leave it to the reader to infer the explanation for the inconsistent decisions. The reason for this is that unless the decision-maker deals expressly with the earlier decision and gives reasons that are directed at explaining the apparent inconsistency, there is likely to be a doubt as to whether he has truly taken the earlier decision into account." (George Bartlett QC sitting as a deputy High Court Judge)
Application of the principle
Application of the consistency principle in the context of a previously quashed decision
"It would however be inconsistent with the doctrine of ultra vires as it has been developed in English law as a means of controlling abuse of power …if the judgment of a Court…that a statutory instrument was ultra vires were to have any lesser consequence in law than to render the instrument incapable of ever having had any legal effect upon the rights or duties of the parties to the proceedings." (Lord Diplock)
"15] On behalf of the Secretary of State Mr Warren submits that it was open to the Secretary of State to afford the Richborough decision no weight. It has throughout been accepted to be a material consideration when making the Fox decision. However, it was not a precedent in a legal sense, and whether to attach weight to it and, if so, the weight to be attached, was a decision for the decision-maker…
 Moreover, submits Mr Warren, the Secretary of State was bound to consider that the challenge in the Richborough decision might succeed, as in the event it did succeed by consent. While it had not been conceded at the time of the Fox decision the Secretary of State was entitled to take the prospect of it being quashed into account in deciding to attach no weight to it. The Richborough appeal decision was sub judice at the point of decision, he submits, though accepting that the technical term may not be entirely apt. It would not have been appropriate to apply that decision prior to a final determination of the challenge to its legality.
" I do not accept that proposition. Further analysis was required by the Secretary of State of the situation that had arisen before making his decision in the Fox appeal.
 …. In my judgment it was not open to the Secretary of State to put aside the Richborough decision when making the Fox decision. He could not put it aside on the ground that there was a High Court challenge, the challenge being made on quite different grounds.
 Mr Warren argues that, whatever the grounds, if the decision is quashed it is quashed, but that in my judgment is to take too simplistic a view of the situation. One has to look forward…..
 There should have been an analysis of the relevance of the Richborough decision to the Fox decision and a consideration of what the implications of favourable findings in Richborough were for the Fox appeal. If the Secretary of State was minded to depart from the spatial findings in Richborough, at least an explanation was required of why he proposed to do so. Rather than provide that, he simply relied on the existence of the High Court challenge which, upon analysis, does not begin to deal with the key question of inconsistency and also does not provide a justification for failing to address the question of inconsistency.
 In my judgment the judge was correct to reach the conclusion he did on this issue. It was unlawful to ignore the implications of the Richborough decision when making the Fox decision. The inconsistencies against which the North Wiltshire principles guard were present in this case and have led to an unlawful decision by the Secretary of State which I too would quash."
"26 On analysis, therefore, it seems to me that the relevant principles are these:
a) The second inspector must consider carefully the reasons put forward by the first inspector.
b) The second inspector is not bound by the views of the first; he or she must exercise his own judgment.
c) If the second inspector reaches a different conclusion then, for consistency/public confidence reasons, he or she must explain why. Those reasons must satisfy the usual South Bucks test (see paragraph 23(c) above).
27. Ms Busch argued that, whilst these principles may not themselves be objectionable, she did not accept that they could apply to a case like this, where the first inspector's decision letter has been agreed to be unlawful. That is a reasonable point, but only to the extent that it relates to a matter connected with the unlawfulness of the first decision. In other words, if the first inspector decided a particular issue in such a way that his or her decision on that point was unlawful, the second inspector would be justified in dealing with that issue entirely afresh, without making any reference to the previous unlawful decision on that issue. If, on the other hand, the first inspector provided clear and cogent reasons for a conclusion on a specific issue, which explanation was nothing whatsoever to do with the subsequent unlawfulness of the decision, then the principles that I have outlined above must apply. In other words, the mere fact that the first inspector's decision was quashed as being unlawful should not, without more, render the whole decision irrelevant to the second inspector.'
"The approach adopted in Vallis is inconsistent with that which had been adopted in Kingswood, which was not cited and with Arun which does not appear to have been cited either Similarly, Fox v Secretary of State  1 P & CR 6 does not provide a definitive answer because the authorities on which the judge had taken a different view in Arun were not cited to the court and because the decision relied upon in Fox was under challenge but had not been quashed. Thus, this is an area of planning law which has been left in some confusion because of the conflicting approaches by first instance judges in many cases where those first instance judges had not had the or any of the relevant authorities cited to them"
i) The principle of consistency is not limited to the formal decision but extends to the reasoning underlying the decision (North Wilts v Secretary of State; Dunster; Baroness Cumberledge; Fox Stategic and Vallis).
ii) Of itself, a decision quashed by the Courts is incapable of having any legal effect on the rights and duties of the parties. In the planning context, the subsequent decision maker is not bound by the quashed decision and starts afresh taking into account the development plan and other material considerations (Hoffman La Roche; and Kingswood).
iii) However, the previously quashed decision is capable in law of being a material consideration. Whether, and to what extent, the decision maker is required to take the previously quashed decision into account is a matter for the judgment of the decision maker reviewable on public law grounds. A failure to take into account a previously quashed decision will be unlawful if no reasonable authority could have failed to take it into account (DLA Delivery Ltd v Baroness Cumberledge of Newark )
iv) The decision maker may need to analyse the basis on which the previous decision was quashed and take into account the parts of the decision unaffected by the quashing (Fox and Vallis). Difficulties with identifying what has been quashed and what has been left could be a reason not to take the previous decision into account (as with the cases of Arun and West Lancashire).
v) The greater the apparent inconsistency between the decisions the more the need for an explanation of the position (JJ Gallagher).
Application of the law to the facts