Flemming & Ors, R (on the application of) v Wiltshire Council & Anor [2015] EWHC 1260 (Admin)

Case No CO/4619/2014[2015] EWHC 1260 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT BRISTOL
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 05/05/2015
Before
THE HONOURABLE MRS JUSTICE PATTERSON DBE
Between
THE QUEEN (on the application of MR JA FLEMMING, PROF R MOODY, MRS J TODD AND MR R TODD being representatives of OAKSEY CONSERVATION GROUP)ClaimantWILTSHIRE COUNCILDefendantOAKSEY PARK LIMITEDInterested Party
Nina Pindham (instructed by Thrings Solicitors) for ClaimantMatthew Reed (instructed by Wiltshire County Council) for DefendantHearing Hearing date: 23 April 2015
Judgment

Introduction

[1]On 23 August 2014 Wiltshire Council (the defendant) granted planning permission on application 13/00958/S37A under section 73 of the Town and Country Planning Act 1990 (TCPA) to remove conditions 8, 9 and 10 of planning permission 10/03614/S73A which limited the use of eight buildings on Oaksey Park, Wiltshire, to holiday lets. The claimant challenges the grant of that planning permission.[2]Permission was granted at an oral renewal hearing on 15 January 2015 by Gilbart J. He granted the claimant permission also to amend the grounds and gave directions for case management. As a result there are two grounds of challenge before the Court, namely: i) That the decision was based on a misunderstanding of the scope of the planning issues which were relevant to a decision maker pursuant to section 73 of the TCPA; ii) That the decision maker should have considered the application under section 73A of the TCPA. At the hearing it was agreed by both parties that ground (ii) is of no relevance to the challenge. I agree. I say no more about it.[3]The claimants are members of Oaksey Conservation Group, a collection of local residents concerned about sustainable development in the village of Oaksey. The defendant is the local planning authority. The interested party is Oaksey Park Limited which benefits from the planning permission granted on 23 August 2014. The interested party filed an acknowledgment of service contesting the proceedings but otherwise has taken no part in them.

Factual Background

[4]The application site is located in open countryside to the east of the village of Oaksey. In 1989 there was a planning application for change of use of agricultural buildings on the site to residential holiday and staff accommodation. That application received planning permission in 1990. In 2002 further planning permission was granted for the erection of 18 two and three bedroom holiday lodges and a bunkhouse with covered parking. There were then a series of applications to vary conditions imposed on the original planning permissions. One of those applications went to appeal which was determined by a Planning Inspector on 20 October 2004. He regarded the main issue in the case before him to be the effect of the proposal on the character and appearance of the surrounding area, having regard to policies designed to restrict permanent residential development in the countryside. He allowed the appeal and substituted a more permissive condition as follows:
“The building shall not be occupied other than for holiday accommodation, and shall not be occupied from 6 January to 5 February inclusive in any year, and shall at no time be used for permanent residential accommodation.”
[5]On 8 April 2013 a planning application was submitted to remove conditions 8, 9 and 10 of planning permission 10/03612/S73A, to vary condition 7 of 02/01841/FUL and to remove the condition that I have just set out in the 2004 appeal. In essence all of the conditions which it was sought to remove or vary restricted the use of the buildings to holiday lets. The conditions with their reasons for implementation read as follows:
“10/03612/S73A 8. Notwithstanding the Town and County Planning (Use Classes) Order 1987 and the Use Classes (Amendment) Order 2005 (or any Order revoking and re-enacting those Orders, with or without modification), the buildings(s) herby permitted shall be used for holiday accommodation only and for no other purpose. REASON:- This site is in a position where the Local Planning Authority, having regard to the reasonable standards of residential amenity, access, and planning policies pertaining to the area, would not permit permanent residential accommodation. POLICY: C3 of the adopted North Wiltshire Local Plan 2011, RLT9 of the Wiltshire and Swindon Structure Plan 2016 and the Good Practice Guide on Planning for Tourism. 9. The building(s) hereby permitted shall not be occupied as a persons’ sole or main place of residence. REASON:- This site is in a position where the Local Planning Authority, having regard to the reasonable standards of residential amenity, access, and planning policies pertaining to the area, would not permit permanent residential accommodation. POLICY: C3 of the adopted North Wiltshire Local Plan 2011, RLT9 of the Wiltshire and Swindon Structure Plan 2016 and the Good Practice Guide on Planning for Tourism. 10. The owners/operators of the site shall maintain an up-to-date register of the names of all owners/occupiers of individual units identified in red upon drawing No. JC/001/2 and of their main home addresses, and shall make this information available at all reasonable times to the local planning authority. REASON:- This site is in a position where the Local Planning Authority, having regard to the reasonable standards of residential amenity, access, and planning policies pertaining to the area, would not permit permanent residential accommodation. POLICY: C3 of the adopted North Wiltshire Local Plan 2011, RLT9 of the Wiltshire and Swindon Structure Plan 2016 and the Good Practice Guide on Planning for Tourism. 02/01841/FUL The development shall be used only as holiday accommodation and no person shall be in occupation for more than 42 days in any calendar year. REASON:- To ensure that the development is not used as permanent accommodation or as dwellings.”
The application submitted related to eight units of accommodation within the development. REASON:- To ensure that the development is not used as permanent accommodation or as dwellings.”[6]The application was subject to reports to committee. They were prepared on 8 January 2014, 2 April 2014, 23 April 2014 and 4 June 2014. At the meeting on 4 June 2014 the committee resolved that, subject to the agreement of the section 106 obligation, the application should be granted.[7]After the execution of a section 106 agreement the decision notice was issued on 23 August 2014.

The Officer Reports

[8]As the challenge concerns an allegation that the defendant misunderstood the scope of section 73 of TCPA it is necessary to set out parts of the various officer reports to be able to consider the officer analysis. By the time the 4 June 2014 officer report was presented to committee the report had an additional section headed ‘Further comments to meetings of 2nd and 23rd April’. The officer conclusions and recommendations remained unchanged. The report of 23 April was attached to the June report as an appendix A.[9]Section 9 of the June report was headed ‘Planning Considerations’:
“Principle As noted in the planning policy section above and the previous reports to Committee this application is not a proposal for new residential development on greenfield land. It is not an application to change the use of existing buildings. It is worth repeating this fact because many interested parties are in disagreement in this respect. The buildings are in place, they are currently in use for a form of residential occupancy (Dwellings and Holiday Lets are within the same Use Class – C3) albeit of a restricted nature and the original grant of permission and subsequent permissions granted at the site all allow for this form of residential usage of the site. This application seeks to further vary and remove conditions applied to previous permissions in respect of 8 of the constructed properties to allow for wholly unrestricted residential occupancy on the basis that there is no interest in purchasing the Holiday lets and that the business as whole is financially unviable. Therefore as a matter of fact this is not an application for new residential development on Greenfield, previously undeveloped land and the application cannot be assessed in those terms or under national and local planning policies relevant to applications for such new residential development. This is not a change of use application for example agricultural buildings to residential. This application has specific material circumstances pertinent to its determination not addressed by para 55 i.e. financial viability and market interest in the business or individual properties at the site. It is considered that para 55 does not provide a policy basis for determination of this application and no sound and defensible basis for the refusal of the application.”
The defendant had instructed independent consultants, Chesterton Humberts, to investigate whether the units were viable as holiday lettings. Chesterton Humberts concluded that under the current market conditions the lettings business did not represent a viable business as it had not shown a viable return for an investor. Criticisms of the Chesterton Humberts report by objectors were shared with its authors who maintained their view. Officers of the defendant concluded that the advice received from Chesterton Humberts was independent, comprehensive and sound. Additional matters of waste collection, education requirements, access and parking were considered by reference to the report of 23 April 2014 supplemented by further submissions since then and officer comments upon those matters. None of the other considerations were thought by officers sufficient to warrant a refusal of planning permission. The question of precedent was then considered as follows:
“As regards the remaining 12 existing properties at the site these will need to be the subject of marketing to demonstrate any lack of demand for these properties with the restrictive conditions attached. A grant of permission in respect of the 8 properties that are subject to this application does not establish a precedent at the site that must be followed regardless of any other material considerations.”
The report continued in section 10 with its conclusions:
“Whilst it is recognised that there is substantial local opposition to the unrestricted residential occupancy of the use of the holiday lets at this site the Council has sought to assess the application proposals on the basis of relevant material considerations and all material circumstances. It must be noted that this is not an application for new residential development at this site. The proposal cannot be considered in these terms. The Council has sought independent advice in respect of the viability of the site as whole holiday let business and in terms of the marketing and disposal of the properties. The conclusions have been reviewed several times by the author and in the light of a range of information submissions and representations by a range of interested parties. The conclusions remain that the holiday let business as a whole is unviable in this location. Also that both the business as whole and the 8 units that are the subject of this application have been effectively marketed and at reasonable valuations. It is further concluded that there is no preceedable interest in the business as whole or in respect of the 8 units as individual properties with the restrictive conditions attached. It is not considered that any other material considerations either cumulatively or individually indicate that the proposal should be refused.”
[10]The officer recommendation was to approve the application subject to conditions. Within the recommended conditions, conditions 2 and 3 dealt with access to the site and, in each case, the reason for their imposition was recorded to be in the interests of highway safety and in accordance with policy C3 of the North Wiltshire Local Plan 2011.

Legal Framework

[11]Section 73 of the TCPA, where relevant, reads:
“(1) This section applies, subject to subsection (4), to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted. (2) On such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted, and— (a) if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly, and (b) if they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application…”
Section 73(4) is not relevant to the proceedings before the court. It is well established that applications which are made and granted under section 73 result in a new planning permission which is an alternative to the original planning permission. (a) if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly, and (b) if they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application…”[12]There are three decided cases which deal with the scope of a planning authority’s considerations under section 73. They are: i) Allied London Property Investment Ltd v Secretary of State for the Environment [1996] 72 P&CR 327; ii) Pye v Secretary of State for Environment, Transport and the Regions [1998] 3 PLR 72; iii) R v Leicester City Council (ex p Powergen UK PLC) [2000] 80 P&CR 176.[13]The case of Powergen adopted the analysis of Sullivan J (as he then was) in Pye. Pye built upon the analysis in Allied London and is agreed to be the leading authority on section 73. I turn, therefore, to that judgment. Sullivan J said:
“An application made under section 73 is an application for planning permission (see section 73(1)). The local planning authority's duty in deciding planning applications is to have regard to both the development plan, which brings into play section 54A, and to any other material considerations (section 70(2)). [44A] … To hold an applicant, in response to an application under section 73, to the conditions to which his previous planning permission was granted is not merely a course of action which is expressly open to the local planning authority under paragraph 73(2)(b); it is not, in my view, fairly described as ‘going back’ on the original decision, rather it is a reaffirmation of that original decision. Considering only the conditions subject to which planning permission should be granted will be a more limited exercise than the consideration of a ‘normal’ application for planning permission under section 70, but as Keene J pointed out at page 207 of the Frost case, how much more limited will depend on the nature of the condition itself. If the condition relates to a narrow issue, such as hours of operation or the particular materials to be employed in the construction of the building, the local planning authority's consideration will be confined within a very narrow compass. Since the original planning permission will still be capable of implementation, the local planning authority looking at the practical consequences of imposing a different condition, as to hours or materials, will be considering the relative merit or harm of allowing the premises to remain open until, say, 10 o'clock rather than 8 o'clock in the evening, or to be tiled rather than slated.

(b) [46B]”

Officer Reports

[14]The case of Oxton Farms, Samuel Smith Old Brewery (Tadcaster Ltd) v Selby District Council [1997] WL 1106 at [106] provides the following guidance in relation to the content of officer reports.

Judge LJ said:

“The report by a planning officer to his committee is not and is not intended to provide a learned disquisition of relevant legal principles or to repeat each and every detail of the relevant facts to members of the committee who are responsible for the decision and who are entitled to use their local knowledge to reach it. The report is therefore not susceptible to textual analysis appropriate to the construction of a statute or the directions provided by a judge when summing a case up to the jury. 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.”
[15]Baroness Hale in the case of Morge v Hampshire County Council [2011] UKSC 2 at [36] said:
“Some may think this an unusual and even unsatisfactory situation, but it comes about because in this country planning decisions are taken by democratically elected councillors, responsible to, and sensitive to the concerns of, their local communities. As Lord Hoffmann put it in R (Alconbury Developments Ltd and others) v Secretary of State for the Environment, Transport and the Regions[2001] UKHL 23, [2003] 2 AC 295, para 69, ‘In a democratic country, decisions about what the general interest requires are made by democratically elected bodies or persons accountable to them.’ 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 will be defeated: the councillors either will not read them or will not have a clear enough grasp of the issues to make a decision for themselves. It is their job, and not the court's, to weigh the competing public and private interests involved.”

Claimant’s Submissions

[16]The claimant appeared to submit in its skeleton argument that the decision in Pye permits the reconsideration of the principle of development. That was amended in oral submissions to a submission that it was incumbent upon a decision maker in considering an application under section 73 to address section 70(2) of the TCPA and section 38(6) of the Planning and Compulsory Purchase Act 2004. The defendant had to consider the planning merits of the new planning permission that would be granted if the application was approved. The defendant, therefore, had to consider whether the residential development proposed was in conflict with the development plan, which it clearly was, and then come to its conclusion having regard to other material considerations. The way that the defendant approached the application by saying that the principle of residential development could not be reconsidered was misconceived and misunderstood the statutory provisions and case law.[17]That misunderstanding was significant in the current case because of the issues raised by permanent residential development in open countryside outside the defined settlement boundaries. Such development was subject to an entirely different policy regime to that which applied to the holiday lettings business.[18]There was no consideration of the Development Plan and paragraph 55 of the National Planning Policy Framework (NPPF) by the defendant. Those matters had been raised in an email on 9 May 2014 by the Chair of Oaksey Parish Council.[19]The claimant had not been selective in its consideration of the officer report. It considered the report as a whole and the themes which permeated through it. At no stage did it ask whether the development was in accordance with the Development Plan as a whole or material considerations indicated otherwise. The practical effect in terms of precedent if the application was allowed was to create a loophole whereby planning permission could be obtained relying upon tourism policies and policy objections to development in the open countryside could be overcome as a result of being able to take advantage of the removal of conditions on holiday let permissions.[20]Further, there was a conflict as to what happened in terms of advice from planning officers at the committee meetings. Professor Richard Moody, Chairman of Oaksey Parish Council, and a member of Oaksey Conservation Group, said in his witness statement that “planning officers as part of their introduction to the application reiterated their instruction that residential impact of the application was not for consideration and that the only issue to be discussed was the financial viability of the business.”

Defendant’s Submissions

[21]The defendant makes two preliminary submissions: i) A number of issues have been raised by the claimant which were not considered by the defendant. If they are not relevant to the decision they would have no bearing. The extent to which the issues were raised by the claimant or other objectors has a bearing on how they were dealt with. ii) In respect to matters that were raised by the claimant there is no evidence that they would have or might have made a difference to the decision.[22]The law is not in dispute. What needs to be done on an application under section 73 is to consider the position as now and the position without the relevant conditions. Consideration has to be carried out taking into account the baseline position which here consists of the built form of development in the countryside.[23]The officer reports need to be read together and as a whole. When that is done they are fair and legally defensible. The defendant was not saying that the members could not consider the effects of the development. The effects were considered within the report. The claimant has read the reports selectively and/or read too much into the passages relied upon.[24]The Development Plan was properly taken into account and the principal issues addressed, in particular, consideration was given to the North Wiltshire Local Plan policy C3 and NPPF paragraph 55.[25]It is clear that objectors were not restrained from raising points other than viability – the objection from Oaksey Parish Council is an illustration of the diversity of points raised. It included the contention that the location was inappropriate for residential use.[26]In so far as there is a factual dispute as to what was said at the committee meeting the minutes are a summary of what occurred and the witness statements of Mr Burman and Mr Taylor, respectively the Development Control Team Leader and the Area Development Manager, with the defendant make it clear that the advice given at the meeting is not as contended by Professor Moody. In those circumstances, the general principle is that the Court will proceed on the basis of the factual and/or opinion evidence of those defending the decision under challenge: see R v Camden London Borough Council ex p Cran [1996] 94 LGR 8 at page 12.

Discussion and Conclusions

[27]An application under section 73 is an application for a new planning permission. As is made clear in Pye a local planning authority’s duty in deciding a planning application under that section is to have regard to the Development Plan and to any other material considerations. The original planning permission will remain. In considering an application under section 73 the degree to which the Development Plan and other material considerations are considered is a more limited exercise than on an application for planning permission on a greenfield site. The extent of that exercise will depend upon the nature of the condition which is sought to be varied or removed and the effect of that removal.[28]In the instant case development of the site had occurred. Residential development had been constructed and used in the form of holiday lettings. There is an extant built form on the site which it was not proposed to change. The issue then was, given that was the case, what difference permanent residential occupation of the eight buildings would make over the temporary occupation of the buildings as holiday lettings. The claimant contends that the omission of consideration of whether the development was in accord with the Development Plan in the officer report is particularly material given that conflict with policy C3 was one of the reasons for the imposition of the conditions sought to be removed. The defendant was not told that it could consider the issue of whether a new residential community in the open countryside was acceptable. Likewise, paragraph 55 of the NPPF was obviously pertinent.[29]The officer report, in my judgment, is infelicitously expressed in parts. It states baldly that the principle of residential development is not for consideration but, it is clear, from the part of the report of 4 June 2014 on the principle of development that officers were alive to the importance of the fact that they were dealing with an application where the buildings were in place and the nature of the development proposed was wholly unrestricted residential occupancy. Whilst the report does not refer expressly to conflict with the Development Plan as a result of the removal of the conditions it is clear that officers were aware of the overall position. In particular, the report of 23 April 2014 began by saying:
“The application has been called in for committee consideration by Councillor Chuck Berry to allow assessment of the principle and sustainability of the development and implication for other similar proposals and facilities.”
Further, the report referred in section 6 to planning policy. Within that section the report refers to the NPPF and to the North Wiltshire Local Plan and the relevant policies, C2 and C3. The section continues that it should be noted that there are no specific policies in any adopted planning policy document that directly address the variation or removal of planning conditions restricting residential occupancy to holiday accommodation use to allow unfettered residential use. The body of the report repeats that it is not appropriate for any local planning authority to consider the situation on the basis that the application is a proposal for a new residential development and repeats that it cannot be assessed in those terms. That is not entirely the case. Whilst holiday lets were residential development and, to that extent, what was said in the report was true it did not represent the whole picture as the residential use of holiday lettings was of a restricted nature. Unrestricted residential development may have different impacts. It was the difference between the restricted temporary residential use and unrestricted permanent residential use that members had to consider.[30]The report then proceeded to consider the impact of unrestricted residential use. In the report of 23 April 2014 which was Appendix A of the report of 4 June 2014 under the heading, ‘History and conditions’, having set out the conditions that were sought to be removed and the market viability appraisal the report then went on to deal with the impact of the unrestricted residential development and how that impact could be overcome. In that part headed ‘Section 106’ the report states:
“The application proposal would result in unrestricted residential use of the site and in all likelihood the sale of the properties individually and thereby creating a new permanent residential community in this location. …as such consideration of the impact of the new residential community on existing services and infrastructure in the context of the Council’s adopted policies C2 and CF3 of the NWLP in a two-phase approach has been undertaken. ”
The impact then in terms of education and open spaces were considered was it is recorded:
“The site lies adjacent a golf course and is within the open countryside but is not well related to major centres of population and existing public open space provision.”
The report considered also the position with regard to waste facilities.[31]In section 11 of the report further comments after the meetings in April were set out where the issue of residential amenity and the interpretation of paragraph 55 of the NPPF were considered. On residential amenity it was concluded that whilst the existing site layout was probably not the type that would have been favoured for unrestricted residential occupation it did afford acceptable levels of privacy and avoided overlooking. Matters concerning private areas of garden or sitting out space could be addressed with the introduction of fences or other boundary treatments. Under the conditions proposed was one relating to fencing which would give the defendant the opportunity to consider what impact that would have on the appearance of the development or the wider landscape. The contribution to education was set out, as was the contribution to waste collection. On highways it was made clear that the highways team had no objection to the proposals.[32]Miss Pindham, counsel for the claimants, relied upon conflict of the proposed development with policy C3 of the North Wiltshire Local Plan 2011 and, in particular, with criteria (i), (ii), (iii), (iv) and (vi). The relevant parts of the policy read:
“New development will be permitted subject to the following criteria: i) Respect for the local character and distinctiveness of the area with regard to the design, size, scale, density, massing, materials, siting and layout of the proposal; ii) Respect for the quality of the natural and built environment including the historic environment, archaeology and ecology of the locality and where necessary include measures for the preservation or enhancement of such features; iii) Avoid creating development with unacceptable low levels of privacy and amenities and avoid the unacceptable loss of privacy and amenities to adjacent dwellings or other uses to the detriment of existing occupiers development; iv) Ensure access into and within the development is safe, minimises the risk from crime, and is convenient and attractive to pedestrians, cyclists, and people with disabilities; … vi) Promote sustainable patterns of development that will reduce the overall need to travel and support increased use of public transport, cycling and walking; …”
[33]The difficulty that Miss Pindham has is that the first three of those criteria relate to the physical impact of the development. As the development is already in place and no changes were proposed there will be no significant additional impact under those criteria. In relation to criteria (iv) and (vi) the highway authority had no objection. All relevant criteria were considered in the report and the proposal found to be acceptable when judged against them, subject to the imposition of revised conditions.[34]Although, therefore, there is no express reference in the officer reports to a finding that the development proposed was in conflict with the Development Plan it is clear that, reading the report as a whole, issues raised by the Development Plan were considered and the officer view was that there was no material impact if the application was allowed. It was recorded that one of the consequences of allowing the development could be the sale of the properties on an individual basis and hence the creation of a new residential community outside a defined settlement. All of that is set out in terms in the report of 23 April which was before the members as Appendix A to the June report. Officers were thus well aware of the nature of the development proposed.[35]It has to be recalled, too, that members would be familiar with the statutory tests and would be well aware of the policy presumption against new residential development in the open countryside. It follows that whilst there is no express finding of conflict with the Development Plan in the officer report the officer approach which was to examine the impacts of the development proposed cannot be said to have significantly misled the members.[36]It would have been better for the issue before the members to have been put more precisely and for there to have been findings on the Development Plan as Development Plan issues were raised by the proposal. However, officer reports are to be read fairly, as a whole and not subject to forensic analysis as may be appropriate to a document which is the product of legal drafting. When that is done the development in situ remained residential development so that, strictly, the principle of residential development was not up for consideration. What was material were the effects of permanent residential development and, as set out, they clearly were considered. The absence of a finding on the Development Plan in the circumstances was not here of any substance in the final decision made.[37]Miss Pindham submits also that paragraph 55 of the NPPF was obviously relevant. That reads:
“55. To promote sustainable development in rural areas, housing should be located where it will enhance or maintain the vitality of rural communities. For example, where there are groups of smaller settlements, development in one village may support services in a village nearby. Local planning authorities should avoid new isolated homes in the countryside unless there are special circumstances such as: • the essential need for a rural worker to live permanently at or near the place of work in the countryside; or • where such development would represent the optimal viable use of a heritage asset or would be appropriate enabling development to secure the future of heritage assets; or • where the development would re-use redundant or disused buildings and lead to an enhancement to the immediate setting; or • the exceptional quality or innovative nature of the design of the dwelling. Such a design should: ◦ be truly outstanding or innovative, helping to raise standards of design more generally in rural areas; ◦ reflect the highest standards in architecture; ◦ significantly enhance its immediate setting; and ◦ be sensitive to the defining characteristics of the local area.” • the essential need for a rural worker to live permanently at or near the place of work in the countryside; or • where such development would represent the optimal viable use of a heritage asset or would be appropriate enabling development to secure the future of heritage assets; or • where the development would re-use redundant or disused buildings and lead to an enhancement to the immediate setting; or • the exceptional quality or innovative nature of the design of the dwelling. Such a design should: ◦ be truly outstanding or innovative, helping to raise standards of design more generally in rural areas; ◦ reflect the highest standards in architecture; ◦ significantly enhance its immediate setting; and ◦ be sensitive to the defining characteristics of the local area.”
[38]The April report having summarised the paragraph says:
“However, this application is not for new build units or conversions and the application is not for change of use for the buildings. In this case the Council is considering removing conditions that restrict the use of an existing group of residential properties. It is not considered that paragraph 55 is particularly pertinent to this proposal. A refusal based on the requirement of paragraph 55 would be difficult to justify.”
In the June report the officers continued:
“This application has specific material circumstances pertinent to its determination not addressed by para 55 i.e. financial viability and market interest in the business or individual properties at the site. It is considered that para 55 does not provide a policy basis for determination of this application and no sound and defensible basis for the refusal of the application.”
It is self-evidently correct that there were specific material circumstances here which would not relate to new residential development. Namely, the baseline position of existing built development and financial viability issues. Paragraph 55 of the NPPF was considered expressly and was something for members to form a judgment upon.[39]The issue of precedent was raised by Oaksey Parish Council and was dealt with in the officer reports. The June report said:
“A grant of planning permission in respect of the 8 properties that are subject to this application does not establish a precedent at the site that must be followed regardless of any other material considerations.”
The report referred to the fact that any other properties that were to be subject to such an application would have to be subject to their own marketing and financial viability appraisal. What was recommended therefore was not a course that had to be followed regardless of other material considerations. It would be something that would be appraised on a case by case basis. That was entirely proper advice to give. That is a matter for the committee having received advice from their officers. It cannot be contended that the advice was irrational or in any way unlawful.[40]That leaves the issue as to the conflict of fact. Professor Moody contends that, at the committee meeting, officers repeated that residential impact of the application was not a consideration. That is contested by the two officers who have filed statements on the part of the defendant. It is clear from Professor Moody’s speaking notes that when he addressed the committee he made points about traffic, pedestrian facilities on site and in the village and the fact that residences in such a location were contrary to all planning guidance. The minutes make it clear that he and two others spoke in objection to the application. In those circumstances I cannot conclude that Professor Moody is correct in his recollection of the committee meeting.[41]The general principle is that a Court will proceed on the basis of evidence from those defending the decision under challenge. No argument has been raised by the claimant that that approach should not be adopted here. In the circumstances I prefer the evidence of Mr Burnham and Mr Taylor. Accordingly, I find that there was no restraint on the public addressing the committee with their views and, as a consequence, the committee were aware of all material considerations.[42]It follows that whilst the reports are not ideal, read fairly and as a whole, it cannot be said that they significantly misled members of the committee which is the appropriate legal test. I dismiss this application.