Siraj, R (on the application of) v Kirklees metropolitan Council & Anor [2010] EWCA Civ 1286

Case No C1/2010/0929[2010] EWCA Civ 1286IN THE COURT OF APPEAL ( CIVIL DIVISION )ON APPEAL FROM QUEEN'S BENCH DIVISIONVenue MANCHESTER DISTRICT REGISTRY(HIS HONOUR JUDGE LANGAN QC)Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 21st October 2010
Before
LORD JUSTICE SULLIVANLORD JUSTICE ELIASLORD JUSTICE TOMLINSON
Between
The Queen on the application of SirajAppellantKirklees Metropolitan CouncilRespondentBennettRespondentInterested Party
( DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Thomas Roe (instructed by Burton Burton and Ho Solicitors ) appeared for Appellant.Mr Giles Cannock ( instructed by Kirklees Council Legal Services ) appeared for Respondent.The Interested Party appeared in person. for in person
Judgment
[1]This is an appeal, with the permission of HHJ Langan QC, sitting as a deputy High Court judge, against his Order dated 5 March 2010 dismissing the appellant's claim for judicial review of a planning permission, dated 7 April 2009, granted by the respondent council to the first interested party, Mr Bennett, for the erection of an agricultural machinery workshop on the site of Wool Row Lane/Cross Lane, Royd House, Huddersfield ("the site"). Factual background[2]The facts are set out in some detail in paragraphs 10 to 23 of the judgment below, neutral citation [2010] EWHC 444 (Admin). The site is in the Green Belt. The appellant is a local resident, who, together with other local residents, objected to the proposed development. The application for planning permission was first considered by the respondent's area planning subcommittee on 26 April 2007 following a site visit. The planning officer's report ("the report"), which recommended that planning permission should be granted, explained that the application had been referred to the subcommittee by officers "due to the sensitive nature of the proposal in the Green Belt".[3]The members initially gave officers delegated authority to grant conditional planning permission subject to a section 106 agreement. The officers brought the application back to members at a meeting of the subcommittee on 30 September 2007:
"…due to the receipt of public objection questioning the applicant's evidence for very special circumstances to justify this inappropriate development which would otherwise be unacceptable in the Green Belt."
[4]Having described the site, the report under the sub-heading "policy" identified the relevant policies:
"The site is shown as Green Belt and Area of High Landscape Value on the UDP ... The following policies are relevant"
Included in the list of relevant policies was policy D8 in the UDP, summarised as:
"inappropriate development will not be permitted in the [Green Belt] except in very special circumstances."
The report also referred to PPG 2 : Green Belts, with the comment "PPG 2 -- Green Belts reflects the terms of D8."[5]The report summarised the views of consultees. These included the respondent's Economic Development Service, which supported the application :
"It is appreciated that this application is a departure from green belt policy but hope that weight is given to the efforts of the business has made to find more suitable land / premises and the need for this business to be retained in this area for the reasons outlined."
The representations of those who supported and objected to the proposed development were then summarised, followed by the applicant’s (the first interested party’s) supporting information and his response to the objections.[6]The planning officer's assessment of the application for planning permission commenced with this paragraph:
"The proposal is without question inappropriate development in the Green Belt. UDP policy D8 states that such development will not be granted in the Green Belt unless very special circumstances can be demonstrated by the applicant. This is reflected in PPG 2 which states that very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations."
Pausing there, is it is to be noted that Mr Roe accepted on behalf of the appellant that, insofar as this paragraph dealt with PPG 2, it was an accurate summary of the relevant part of PPG 2. He was right to do so: see R(Wychavon District Council) v The Secretary of State for Communities and Local Government [2008] EWCA Civ 692 per Carnwath LJ at paragraph 26.[7]Having referred to a number of policies which were supportive of employment development, the report continued: “The main issue for the Sub-Committee is whether members consider that there are very special circumstances to outweigh the harm caused by the development. The very special circumstances put forward by the applicant is that he provides a specialised service to this particular farming community for which there is no other provider in the area and for which farmers would otherwise need to travel a greater distance or experience delays in accessing the service. This is strongly disputed by objectors and in turn the applicant has sought to address their concerns. Your officers conclude that the applicants business is the franchise for one agriculture machinery manufacturer which has written in support of the proposal. The business provides repairs for the agricultural community and whilst there are other engineering facilities in the area available to local farmers, it is the only local firm supplying specialist repairs for that franchise. Verbal information given from the National Farmers Union area office supports the view that farmers prefer main dealers as the equipment is technical and such dealers are more likely to have the specialist equipment and knowledge to ensure that faults are identified efficiently and without delay. The NFU also confirmed that there a few specialist main dealers in the locality. If Members accept this view and the need to retain the business in the locality they must then be satisfied that this location is the only viable option and that there are no others which would be more appropriate in terms of planning policy. In this respect the applicant has identified previous options and the reasons why they were unacceptable. The applicant states financial reasons in some instances although no figures have been produced as well as refusal of a landowner to sell the site. The applicant has also stated that there are practical difficulties associated with his present site. Notwithstanding the submissions from the objectors it is Officers' view that financial constraints are a material planning consideration. The applicant has not provided any third party evidence to confirm this and Members need to be satisfied that this site is the only option in order to accept financial constraints as very special circumstances to justify inappropriate development in the Green Belt. In Officers' view the lack of third party evidence weakens the applicant's case however, when combined with the other evidence of need and support from the Council's EDS officer it is considered that approval can be recommended. On balance it is considered that very special circumstances have been demonstrated by the applicant. If Members look favourably on the proposal it is recommended that officers be delegated to grant permission with appropriate conditions subject to a S106 Agreement to ensure that the development is removed upon cessation of occupation by the business and the site restored." “[8]The members resolved to grant planning permission in accordance with the recommendation in the report subject to the Secretary of State not wishing to call in the application. The subcommittee delegated authority to officers to grant planning permission subject to the applicant entering into a Section 106 agreement to remove the development and reinstate the site, upon his business, Sovereign Agricultural Services, ceasing to trade from the premises. The Secretary of State did not call in the application, but it took some considerable time for the section 106 agreement to be negotiated, so the planning permission was not granted until 7 April 2009.[9]The decision notice said that: “The applicant has demonstrated [i] the specialist nature of his operation, [ii] the operational requirements of customers, [iii] the difficulties of remaining in his present location and [iv] the lack of other suitable alternative sites all of which are considered to comprise very special circumstances to justify this inappropriate development in the Green Belt. Further the design and materials would not be harmful to the character of the area nor would the use be harmful to road safety.” [numbering added for ease of reference] It should be noted that, by the time that planning permission was granted, policy D8, which had been referred to in the report, was no longer part of the UDP, not being one of those policies that had been saved. The grounds of appeal.[10]Before the judge the planning permission was challenged on four grounds. The judge rejected all of those grounds, and "issue 3", which was dealt with in paragraphs 35 to 37 of the judgment, is no longer pursued as a separate ground. There are therefore three grounds of appeal. It was submitted by Mr Roe that the judge had erred in rejecting the following three criticisms of the respondent's decision: 1) failure to correctly apply the test in PPG 2 when deciding whether to grant planning permission; 2) failure to give adequate reasons for the decision to grant planning permission; and 3) reaching a decision that was Wednesbury perverse. I will consider each of these grounds in turn. Discussion[11]The material parts of PPG 2 are conveniently set out in paragraph 8 of the judgment below:
"3.1 The general policies controlling development in the countryside apply with equal force in Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such development should not be approved, except in very special circumstances. 3.2 Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development."
[12]The submission on behalf of the appellant is that the respondent did not ask itself the critical question posed by PPG 2. There was no mention of PPG 2 in the summary of reasons for granting planning permission, and those summary reasons disclosed no attempt to assess the quality of the four factors which were said to amount to very special circumstances, nor did they consider whether the presumed harm by reason of the inappropriateness of the development in the Green Belt was clearly outweighed by those four factors.[13]In my judgment there is no force in these criticisms, and they are based, at least in part, on a misunderstanding of the role of the respondent's summary reasons for granting planning permission in the decision-making process. When considering the content and adequacy of summary reasons it is important to bear in mind the contrast between the requirement in paragraphs (a) and (b) in Article 22(1) of the Town and Country Planning (General Development Procedure ) Order 1995 ("the GPDO"), now repealed and re-enacted in Article 31 of the Town and Country Planning Development (Management Procedure) (England) Order 2010, which at the material time required a decision notice granting planning permission to include "a summary of [the reasons] for the grant of planning permission" and paragraph (c), which required that a decision notice refusing planning permission "shall state clearly and precisely all reasons for the refusal".[14]A local planning authority's obligation to give summary reasons when granting planning permission is not to be equated with the Secretary of State's obligation to give reasons in a decision letter when allowing or dismissing a planning appeal. I mention this because, although Mr Roe in his oral submissions before us recognised that there was indeed such a distinction between summary reasons and the reasons to be expected in a decision letter, the appellant's skeleton argument relied on the speech of Lord Brown in South Bucks District Council v Porter (No 2) [2004] UKHL 33; [2004] 1 WLR 1953 at paragraph 36. It is important to remember that that case was concerned with the adequacy of reasons in a Secretary of State's decision letter. Although a decision letter should not be interpreted in a vacuum, without regard for example to the arguments that were advanced before the inspector, a decision letter is intended to be a "stand-alone" document which contains a full explanation of the Secretary of State's reasons for allowing or dismissing an appeal. By their very nature a local planning authority's summary reasons for granting planning permission do not present a full account of the local planning authority's decision making process.[15]When considering the adequacy of summary reasons for a grant of planning permission, it is necessary to have regard to the surrounding circumstances. precisely because the reasons are an attempt to summarise the outcome of what has been a more extensive decision making process. For example, a fuller summary of the reasons for granting planning permission may well be necessary where the members have granted planning permission contrary to an officer's recommendation. In those circumstances, a member of the public with an interest in challenging the lawfulness of planning permission will not necessarily be able to ascertain from the officer's report whether, in granting planning permission, the members correctly interpreted the local policies and took all relevant matters into account and disregarded irrelevant matters.[16]Where on the other hand the members have followed their officers' recommendation, and there is no indication that they have disagreed with the reasoning in the report which lead to that recommendation, then a relatively brief summary of reasons for the grant of planning permission may well be adequate. Mr Roe referred us to the observations of Collins J in paragraph 28 of his judgment in R (on the application of Midcounties Co-operative Ltd) v Forest of Dean DC [2007] EWHC 1714 (Admin). For my part, I would respectfully endorse the observations of Sir Michael Harrison in paragraphs 47 to 50 of R(Ling)( Bridlington) Limited v East Riding of Yorkshire County Council [2006] EWHC 1604 (Admin).[17]In the present case the members agreed with the officer's recommendation, and there is nothing to suggest that they disagreed with the reasoning in the report that led to that recommendation. It is clear from the report that the officers were very well aware of the policy in PPG 2. That was why the application had been referred to members in the first instance (and not dealt with under delegated authority), and why it had been brought back to the members when objectors had challenged the applicant's contention that there were very special circumstances which justified this inappropriate development in the Green Belt. The report not merely referred to PPG 2, it also correctly summarised the key aspect of the policy at the outset of the officer's assessment of the application.[18]Having correctly summarised the test, the officer was not in my judgment required to repeat it in full whenever it was being considered in the remainder of the report. Thus the omission of the word “clearly” before the word “outweigh” in the report's formulation of the main issue for the subcommittee is of no consequence. In his oral submissions Mr Roe rightly accepted that if this had been his sole criticism of the report, then it would not have been sufficient to justify a conclusion that the members had been misled by the report into applying a wrong test.[19]It has been repeatedly emphasised that officers' reports such as this should not be construed as though they were enactments. They should be read as a whole and in a commonsense manner, bearing in mind the fact that they are addressed to an informed readership, in this case the respondent's planning subcommittee. In R v Selby District Council ex parte Oxton Farms [1997] EGCS 60, Judge LJ, as he then was, said this: "From time to time there will no doubt be cases when judicial review is granted on the basis of what is or is not contained in the planning officer's report. This reflects no more than the court's conclusion in the particular circumstances of the case before it. In my judgment an application for judicial review based on criticisms on 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.”[20]The appellant's submission that the report simply considered whether the factors relied on as very special circumstances were made out and did not go on to consider whether they were sufficient to "clearly outweigh" the harm caused by this inappropriate development in the Green Belt, plucks out isolated phrases from the report and ignores the fact that the members were first reminded of the relevant policy and were then told that the main issue for them to consider was whether there were very special factors to outweigh the harm caused by the development. The subsequent reference to "very special circumstances to justify inappropriate development in the Green Belt" is simply a convenient paraphrase of the full test which had been correctly set out at the beginning of the officer's assessment. Reading the report as a whole it is simply unrealistic to contend, as the appellant does, that having set out the correct test the author of this report then lost sight of it. Nor is there any force in the complaint which was made in the skeleton argument, but not pursued in Mr Roe's oral submissions, that members were not reminded of the statement in paragraph 3.2 of PPG 2 that :
"In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development."
[21]As I have mentioned, the matter was first referred to and then brought back to the subcommittee precisely because of the sensitive nature of the proposal in the Green Belt and the need to decide whether there were very special circumstances which justified inappropriate development which the officer advised members "would otherwise be unacceptable in the Green Belt" (emphasis added). The report concluded, effectively, that there was no "other harm" to be weighed in the balance. Thus the only material objection was the harm by reason of inappropriateness. The officer was concerned that members should be satisfied that there were "very special circumstances to justify inappropriate development in the Green Belt" precisely because substantial weight was being given to the underlying policy that inappropriate development is by definition harmful to the Green Belt and would be, in the officer's words "unacceptable", unless members were persuaded that it was justified by very special circumstances. In my judgment no reasonable criticism can be made of the report, and there is no question of the members having been seriously misled as to the policy approach to inappropriate development in the Green Belt. In accepting the officer's recommendation, for the reasons given in the report, members were applying the correct test.[22]Before turning to ground 2 I should mention for completeness that Mr Roe referred us to a decision of Sir George Newman in SB Herda Foods Ltd [2008] EWHC 3046 (Admin) In my judgment the judge was right to distinguish this case. It has no relevance for present purposes. It was a case in which an inspector had erred on the face of a decision letter in the manner in which he had applied Green Belt policy because he had failed to apply the approach set out in paragraph 26 of Wychavon. In the present case the advice at the outset of the assessment of the report accords entirely with the approach in Wychavon.[23]I turn therefore to ground 2. Against the background of the officer's report, it is not in the least surprising that the summary reasons for granting planning permission did not repeat the appropriate test or refer to PPG 2 but simply referred to the fact that, in the members' view, the applicant for planning permission had demonstrated the existence of four factors which comprised "very special circumstances to justify the inappropriate development in the Green Belt". Had the summary reasons merely stated that the applicant had demonstrated the existence of the four factors, there might have been some support for Mr Roe's submission that the members had merely considered whether those factors had been established and had not gone on to consider whether they were very special circumstances which clearly outweighed the harm done by reason of inappropriate development in the Green Belt or that, if they did go on to consider that question, it was not sufficiently clear from the summary reasons that they had done so. But the summary reasons did not stop there. They made it clear that the members considered that those four factors comprised "very special circumstances to justify this inappropriate development in the Green Belt"[24]Members had been advised as to when very special circumstances would justify inappropriate development in the Green Belt. At the outset of the assessment of the application, the report had advised members that very special circumstances to justify inappropriate development would not exist unless the harm by reason of inappropriateness and any other harm was clearly outweighed by other considerations. There is no reason to suppose that the members had somehow forgotten or discarded that advice when deciding, in the words of the summary reasons, that the very special circumstances established by the applicant did justify this inappropriate development in the Green Belt. There is no force in the appellant's submission that the summary reasons do not explain why the four factors amounting to very special circumstances outweighed the objection to inappropriate development in the Green Belt. This was a summary. In that summary the respondent was not required to give reasons for reasons. Indeed it is difficult to see what more could sensibly have been said. Provided the four factors were capable of amounting to very special circumstances clearly outweighing the harm caused by inappropriate development in the Green Belt, the question for the members was: did they or did they not clearly outweigh that harm? The conclusion that they did sufficiently explains, particularly in summary form, why planning permission was granted. Further analysis in the summary reasons was not required.[25]I turn therefore to ground 3. The short answer to this ground of the appeal is that it cannot be said that the four factors were incapable as a matter of law of amounting to very special circumstances justifying the exception to Green Belt policy. Indeed, in his oral submissions, Mr Roe accepted that if the four factors had been established, then at least in principle they were capable of amounting to very special circumstances. If they were capable of amounting to very special circumstances which justified an exception to Green Belt policy, then it was for the members to decide as a matter of planning judgment whether in fact they did so in this case.[26]Mr Roe referred us to his skeleton argument which analysed the four factors. It was said that the specialist nature of the operation did not require the first interested party to be located in the Green Belt. Secondly, the operational requirements of his customers did not require a site in the Green Belt, because the first interested party had been operating from a site outside the Green Belt for some time. Thirdly, the supposed difficulties of remaining at the business's present location called for closer investigation because the first interested party had been trading from there for some years and it was said that the council's investigation was cursory. And fourthly, it is submitted that the lack of other suitable alternative sites was very far from evidenced on the basis of the four examples given.[27]It seems to me that there are a number of flaws in this approach. Firstly, it was not suggested that, considered individually, any one of the factors would have been sufficient to justify inappropriate development in the Green Belt. Rather it was the combination of factors, in particular the need for relocation and the need for a relocated site to be in a rural area suitable for the farmers whose needs it would serve and the fact that there was no alternative site, that amounted to very special circumstances.[28]When considering whether the members' conclusions on these four issues -- for example whether the search for alternative sites had been adequate -- whether the present location of the business was adequate and secure for the long term and so forth -- were conclusions which were rationally open to them, it is important to remember that this application was supported by the council's Economic Development Service and that this was not a case where the planning officers were contending that there was a reasonable prospect of a suitable alternative site being found outside the Green Belt. I say “outside the Green Belt” because it will be remembered that the only objection to this site, in the respondent's view, was the Green Belt policy objection. The respondent had not been persuaded that there was any other harm which needed to be weighed in the balance. So any other site in the Green Belt would have been open to precisely the same policy objection.[29]In effect, this ground of challenge amounts to no more than a contention that the respondent gave undue weight to these four factors. I recognise that another local planning authority might well have concluded that four factors such as these were not sufficient to justify inappropriate development in the Green Belt, but the weight to be attributed to the four factors in this case was for the subcommittee to decide as a matter of planning judgment. The fact that a different view might have been taken does not mean that their decision was perverse. Conclusion[30]For these reasons I for my part would dismiss this appeal.[31]I agree.[32]I too would dismiss the appeal for the reasons given by my Lord.

Order

Appeal dismissed

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