Siraj, R (on the application of) v Kirkless Council & Ors [2010] EWHC 444 (Admin)

Case No CO/7546/2009[2010] EWHC 444 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT SITTING AT LEEDS
Venue Leeds Combined Court Centre
The Court House
1 Oxford Row
Venue Leeds LS1 3BGDate 05 March 2010
Before
His Honour Judge Langan QC
Between
THE QUEEN on the application of NAEEM SIRAJClaimantKIRKLEES COUNCILDefendantTIMOTHY CHARLES BENNETTInterested PartiesSTEVEN BENNETTInterested PartyMARGARET ELIZABETH DEARNLEYInterested Party
Mr Thomas Roe (instructed by Burton Burton & Ho LLP, Leeds) for claimantMr Giles Cannock (instructed by Legal Services, Kirklees Council) for defendantMr Timothy Bennett, an interested party, in person for in personHearing Hearing date: 09 February 2010
JUDGMENTHis Honour Judge Langan QC:Introduction
[1]There is before the court an application to quash a decision of the defendant (‘the Council’) to grant planning permission for the erection in the Green Belt of an agricultural machinery workshop. The claimant (‘Mr Siraj’) is a resident of the area in which the workshop is to be built and was an objector to the planning application. The first interested party (‘Mr Bennett’) was the applicant for planning permission. The second interested party is Steven Bennett: he is Mr Bennett’s son and a partner in Mr Bennett’s firm. The third interested party is Margaret Dearnley: she is the freehold owner of the relevant land.[2]Permission to apply for judicial review was granted by His Honour Judge Grenfell on 9 October 2009. At the hearing before me Mr Siraj was represented by Mr Thomas Roe and the Council was represented by Mr Giles Cannock. Mr Bennett also addressed the court. I am grateful to them all for their helpful oral and (in the case of Mr Roe and Mr Cannock) written submissions.[3]The principal ground on which it is said that the decision under review should be quashed is that the Council erred in law in failing to apply the correct test to the question whether planning permission should be granted. That test, which relates specifically to applications for inappropriate development in the Green Belt, is contained in Planning Policy Guidance 2: Green Belts (‘PPG 2’) issued by the Department of Communities and Local Government. Other grounds are relied upon by Mr Siraj but, at any rate on the view which I take of the case, they are of less significance. It appeared at one time that there might be some controversy whether some of these grounds were amended grounds, for which permission had been given by a consent order, or new grounds, for which permission would still be required. To the credit of the Council and of Mr Cannock, nothing was made of this point at the hearing and, in so far as permission to rely upon new grounds is required, I give that permission.

The legal framework

[4]By section 70(2) of the Town and Country Planning Act 1990 a local planning authority, when dealing with an application for planning permission, is required to have regard to the provisions of the development plan, so far as material to the application, and to any other relevant consideration.[5]By section 38(6) of the Planning and Compulsory Purchase Act 2004, if regard is 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. The development plan is defined in section 38(3) as being, for the purpose of any area in England outside Greater London,(a) the regional spatial strategy for the region in which the area is situated and(b) the development plan documents (taken as a whole) which have been adopted in relation to the area.[6]At the time of the relevant planning committee meeting in this case, the statutory development plan comprised the Regional Spatial Strategy for the Yorkshire and Humber Region, which had been adopted in March 1999, and the Kirklees Unitary Development Plan, which had been adopted in May 2004.[7]The unitary development plan dealt (in Chapter 2, The Development Framework) with areas in Kirklees to which Green Belt policies applied and made specific reference to PPG2. Policy D8, which was included in that part of the plan dealing with the Green Belt, stated that “within the green belt, except in very special circumstances to be demonstrated by applicants, planning permission will not be granted for inappropriate development.”[8]PPG2 lies at the heart of this case. The material parts read as follows:
“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.”
[9]The only other provision to which I should refer is article 22(1) of the Town and Country Planning (General Development Procedure) Order 1995, which deals with the giving of reasons for decisions on planning applications. By article 22(1)(a) and (b), when permission is granted or is granted subject to conditions “the notice shall include a summary of [the] reasons for the grant.” By article 22(1)(c), when permission is refused “the notice shall state clearly and precisely all reasons for the refusal.”

The facts

[10]Mr Bennett’s planning application bears a date of receipt by the Council of 2 February 2007 and a revised date of receipt of 16 February 2007. The application was accompanied by a Design and Access Statement from Holdsworth Design Practice, a submission from Pritchard Associates, planning consultants, and two statements from Mr Bennett.[11]The Design and Access Statement described the site, which is open land lying within the Green Belt and exposed to all sides. The proposed scheme was to erect an agricultural style building to house an established tractor repair business, Sovereign Agricultural (which is the name of Mr Bennett’s firm). The building was to be 24.3m x 15m with a ridge height of approximately 6.2m and an eaves height of 4.2m.[12]The submission from Pritchard Associates advanced reasons in favour of permitting the proposed development within the Green Belt. The writer, Mr Harvey Pritchard, acknowledged that the development must be characterised as inappropriate development, so that special circumstances had to be established if planning permission were to be obtained. Mr Pritchard made the following points.(1) Although there had previously been similar businesses in the district, Sovereign Agricultural were now the only qualified agricultural machinery engineers in the area. The nearest similar businesses were at Skipton and York.(2) Since December 2002 Sovereign Agricultural had been operating from an unsuitable site on terms that it must leave on one month’s notice.(3) Notwithstanding an extensive search, suitable alternative premises had not been found.(4) If the firm was to continue to operate, it must find a suitable site within the radius of 20 miles or so in which it had become established.(5) There was a strong level of support from the farming clients of the business: immediacy of call-out was vital to farmers in the event of sudden failure of machinery. Also, the firm was a main dealer for two makes of tractor and had (unlike local repair garages) the required diagnostic equipment for these.(6) In summary, there was “an obvious need for the business demonstrated by the level of support, an obvious lack of relocation sites… [and] the increasing concern that if the firm cannot be relocated existing and future jobs will be at risk.”[13]Mr Bennett’s first statement gave particulars of his unsuccessful efforts to find alternative sites. These had failed, either because the required planning consents could not be obtained, or because the prices being asked by the vendors of the sites were too high.[14]Mr Bennett’s second statement dealt with his firm’s client base. He listed the names and addresses of 74 farmers who operated within a 10 mile radius of the proposed site and who relied on his services. He stated that a further 200 farmers in West Yorkshire also relied on his firm.[15]The planning application was duly advertised and was considered by a planning sub-committee on 28 April 2007, following a site visit. The sub-committee then resolved to delegate to officers the power to grant planning permission on certain conditions. It appears that local opposition to the application thereafter hardened. In particular, on 1 June 2007 Chadwick Lawrence LLP, solicitors, wrote to the Council a letter of objection on behalf of 8 local residents (counting husband and wife living at the same address as a single objector). One of the objectors was Mr Siraj. He is a barrister and was at the time employed as in-house counsel by Chadwick Lawrence. The reasoned objections attached to the letter from Chadwick Lawrence challenged the view that the proposed development could be justified by reference to PPG2.[16]In the light of the objections which had been received, officers, no doubt wisely, decided to bring the planning application back to councillors. This led to the application coming on to the agenda of the Planning Sub-Committee (Heavy Woollen Area) on 13 September 2007.[17]It is common ground that about twelve councillors were present at the meeting: neither Mr Siraj nor those representing the Council can now be sure of the precise number. One of the councillors was Mr David Sheard. Mr Siraj was invited to address the sub-committee in support of his objections. He says, and it is not disputed, that his submissions were focused on the inconsistency, as he saw it, of the proposed development with the principles embodied in PPG2. The meeting was clearly somewhat heated, and particular fuel was added to the fire by a remark made by Councillor Sheard. There are differing versions of what it was that Councillor Sheard said, but it is agreed that for the purposes of this hearing I should take this as the accurate quotation:
“I can’t think of a better use for the Green Belt than mending tractors… far better use of the Green Belt than solicitors sat in posh houses.”
[18]The sub-committee had before it a lengthy report from officers.[19]In the section of the report dealing with consultations, reference was made at some length to the views of the Economic Development Service (‘EDS’) of the Council. The report referred to the need for a rural location for Mr Bennett’s business, to his difficulty in finding alternative premises, and to the impact which his forced relocation to another area would have on local farms. The view of the EDS was that a strong case for the proposed development had been put forward, and it was “hope[d] that weight is given to the efforts 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.”[20]I must quote at length from the assessment with which the report concludes:
“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 PPG2 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… 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 debelopmenmt is removed upon cessation of occupation by the business and the site restored.”
[21]After the discussion at the meeting had concluded, the members of the sub-committee unanimously resolved to delegate the grant of planning permission to officers, subject to the making of the recommended section 106 agreement and also subject to some 16 conditions, none of which is controversial.[22]There was then a considerable delay, which (I was told) was largely accounted for by negotiations as to the terms of the section 106 agreement. Eventually, planning permission was granted on 7 April 2009. The statement of reasons in the decision is these terms:
“The reasons for granting planning permission can be summarised as follows: The applicant has demonstrated the specialist nature of his operation, the operational requirements of customers, the difficulties of remaining in his present location and 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. There are no other material considerations which outweigh these findings.”
There are no other material considerations which outweigh these findings.”[23]It is this planning decision which is challenged in these proceedings. Issue 1: error of law[24]By his challenge under this heading, the Mr Siraj seeks to impugn the planning decision on the basis that the sub-committee failed to determine the application by reference to the correct legal test.[25]There have been several judicial attempts to formulate the question which has to be answered when a decision-maker is called upon to apply the guidance which was material in this case. I take as the authoritative formulation this passage from the judgment of Sullivan J in Doncaster MBC v Secretary of State for the Environment, Transport and the Regions [2002] JPL 1509 at paragraph 70, which was approved in the Court of Appeal by Carnwath LJ (with whom Sir Anthony Clarke MR and Wilson LJ agreed) in R (on the application of Wychavon DC) v Secretary of State for Communities & Local Government [2009] 1 P & C R 15 at paragraph 26:
“Given that inappropriate development is by definition harmful, the proper approach was whether the harm by reason of inappropriateness and the further harm, albeit limited, caused to the openness and purpose of the Green Belt was clearly outweighed by the benefit to the appellant’s family and particularly to the children so as to amount to very special circumstances justifying an exception to Green Belt policy.”
The reference to the benefit to the appellant’s family and children was, of course, case-specific. In view of Mr Roe’s submissions, it is, in my judgment, material to mention that Carnwath LJ did not think that one has to draw a rigid distinction between the two parts of the question posed by paragraph 3.2 of PPG2 (paragraph 25). Rather he saw “no reason, in terms of policy or common sense, why the factors which make a case ‘very special’ should not be the same as, or at least overlap with, those which justify holding that green belt considerations are ‘clearly outweighed’ ” (paragraph 26).[26]In his written submissions, Mr Roe breaks down his criticism of the decision in this way:(1) there is no express mention of PPG2;(2) there is a mere listing of factors said to justify development, with no attempt to assess the quality of the factors according to planning principles and considerations;(3) there is no consideration of the question whether the presumed harm by reason of inappropriateness was clearly outweighed by these factors. The sub-committee is said to have fallen into precisely the same error as that of which a planning inspector was guilty in the case of SB Herba Foods Limited v Secretary of State for Communities and Local Government [2008] EWHC 3046 (Admin).[27]I am not persuaded by these criticisms, individually or collectively.[28]I can, I think, dispose quite shortly of Mr Roe’s reference to the SB Herba Foods case. This was very different from the present case in that the inspector’s decision was compromised by an obvious error whereby the inspector asked whether particular circumstances relied upon as “very special” were “commonplace” or “unusual.”[29]Before looking at the sub-committee’s decision in detail, I want to make one general point. I do not think that the reasons shortly stated by a planning committee should be subjected to the same kind of line-by-line analysis as is appropriate when dealing with a report by a planning inspector or a decision made by the Secretary of State. One does not expect in such a committee’s reasons anything resembling the stage-by-stage analysis for which one would fairly look in an inspector’s report or a ministerial decision.[30]Taking that general approach, I find it impossible to discern any error of law in the reasons in this case.(1) The relevant part of PPG2 had been drawn to the attention of the sub-committee in the planning officer’s report, and that PPG2 was in the mind of the sub-committee is apparent from the terms in which the reasons are expressed (the phrases “inappropriate development” and “very special circumstances” come straight from PPG 2).(2) The fact that the four factors are expressly mentioned shows that the sub-committee was relying on them as very special circumstances justifying development. I do not think that it can be said that any of them is incapable in law of being a very special circumstance for the purposes of PPG2; and it has not been shown that the sub-committee fell into the “unusual”/”commonplace” trap or otherwise wrongly characterised or misunderstood them.(3) The requirement that the factors justifying development should clearly outweigh the harm caused by inappropriate development had been drawn to the attention of the sub-committee at the beginning of the assessment section of the officers’ report; and they had shortly afterwards, albeit without the use of the word “clearly”, referred to the consideration of the question whether the very special circumstances outweighed the harm caused as “the main issue” which would have to be considered. I am unable to derive from a reading of the decision in conjunction with the material which was before the sub-committee the conclusion, or even a significant risk, that the members failed to appreciate the nature of the exercise which they were being called upon to carry out. If they knew what the appropriate test was, and there is (as I think) nothing to suggest that they disregarded it, they should be taken to have applied it.[31]During counsel’s oral submissions, I regarded the cases of the parties on this first ground of challenge as evenly balanced. I confess that, on re-reading the papers and looking at the evidence as a whole, I have come to a conclusion rather more decisively than I had expected. In my judgment, this first ground clearly fails. Issue 2: failure to give adequate reasons[32]The criticism here is that, although the sub-committee in its decision conveys to the reader its view that the four factors mentioned outweigh the harm caused by the development, the decision does not attempt to say why this is so.[33]In my judgment, this does not constitute a failure to give adequate reasons. It is common, whenever a judge or other decision-maker is called upon to weigh up competing considerations, simply to mention those which are considered to be relevant on each side of the question and then to say on which side the scales come down. Provided that the reader knows what considerations have been taken into account (or rejected as irrelevant), no more seems to me to be necessary. On the basis of the procedure laid down by statutory instrument (see paragraph 9 above), a summary of reasons is all that is required; and, on the basis of what the Court of Appeal said in the Wychavon case (see paragraph 25 above), such a statement may be holistic rather than staged. It is to be observed that, by contrast with some of the cases to which reference was made during submissions, the sub-committee here gave its own reasons, and did not simply refer to the report of officers or to other extraneous material.[34]In short, I do not think that Mr Siraj or anyone else reading this decision could be left in any doubt as to the reasoning process of the sub-committee. Accordingly, this ground of challenge must fail. Issue 3: Councillor Sheard’s conduct[35]I say at once that the remark made by Councillor Sheard was an unfortunate one. It is wholly understandable that Mr Siraj, both as a local resident and as a lawyer, should have felt disquiet, whether in the heat of the meeting or on calmer reflection afterwards. That is, however, as far as I think that the matter can be carried.[36]The test to be applied to an incident of the kind under consideration is to be derived from the decision of the Court of Appeal in R (Lewis) v Redcar and Cleveland BC [2009] 1 WLR 83: one has to ask whether the members made their decision with closed minds, or the circumstances give rise to such a real risk of closed minds that the decision ought not in the public interest to be upheld.[37]Here, one is dealing with a throwaway remark by one member out of a group of about twelve councillors. Robust though Councillor Sheard’s mode of expression may have been, it has to be said that his view can be regarded as one which might fairly be held of the relative merits of differing types of development in the Green Belt: and councillors who are called upon to decide planning applications are not required to leave their political and other opinions outside the door of the committee room. More important, there is no suggestion that any other member of the sub-committee shared Councillor Sheard’s view, and there is no basis for supposing that the decision ultimately reached was arrived at on a “closed minds” basis. In my judgment, there is no way in which the decision could be upset on the basis of actual or perceived bias. Issue 4: perversity[38]Finally, it is said that the decision was such that no reasonable planning authority could have made it. Far from the factors relied upon by Mr Bettett being “very special”, they are little more than evidence of his undoubted desire to move his business to a more suitable location and cannot support a decision to permit what he accepts as inappropriate development in the Green Belt.[39]This submission was supported by an analysis of the four factors relied upon before the sub-committee with a view to showing that none was as strong as a reading of the reasons for decision might suggest. It was, for example, said that the allegedly precarious nature of Mr Bennett’s occupation of his current premises was not the subject of proper investigation; and that he had in fact made very few attempts over the years to relocate elsewhere, another point on which his case should have been tested.[40]In my judgment, criticisms of this kind simply cannot suffice to undermine the planning consent. The factors analysed were all ones which were proper matters for consideration by the sub-committee. The merits of those factors, and the weight to be attached to each, were matters for the planning authority, and are a long way removed from what is properly the subject of intervention by way of judicial review Disposal[41]It follows from what I have said that the claim for judicial review must be dismissed. Addendum[42]After this judgment had been circulated in draft, Mr Roe drew my attention to the fact that in paragraph 30 IU had drawn conclusions from “a reading of the decision in conjunction with the material which was before the sub-committee.” I had, in Mr Roe’s view, sidestepped one of his principal submissions, namely, that a decision notice should stand or fall on its own: see R (Midcounties Co-Operative Ltd) v Forest of Dean District Council [1907] 2 P. & C.R. 30 at paragraphs , 28, 29 (Collins J); R (Metropolitian Borough of Wirral) v Chief Schools Adjudicator [2001] ELR 574 at paragraph [58] (Ouseley J). Mr Roe accordingly invited me to consider giving or amplifying my reasons for the apparent rejection of his submission.[43]For the avoidance of doubt, I should say that the approach adopted by Mr Roe was entirely proper and was made, both as to the substance of his observations and as to the immediate disclosure of those to Mr Cannock, in a manner consistent with the relevant authorities.[44]I accept that a decision notice has to stand on its own for the purpose of ascertaining the reasons given for the grant (or refusal) of planning permission. Under Issue 2, I have decided that the statement of reasons was adequate and I do not think that I have construed that statement by reference to extraneous material: see paragraphs 33 and 34. Indeed, the statement itself does not refer to the officers’ report: see paragraph 22. It does not, however, appear to me to follow that, when deciding under Issue 1 whether the decision involved an error of law, I was somehow confined within the four corners of the decision notice. So, whilst I accept the correctness of the principle advanced by Mr Roe, it goes to only one of the issues which were before me and was not, in my judgment, breached in relation to that issue.

Cited in 1 later judgment