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Jenny Wigley of No5 helps quash planning permission in judicial review

The High Court has quashed (for the second time) a planning permission for a single dwelling on the edge of Hazelwood in Derbyshire. Jenny Wigley represented the claimant, Royston Potter, in the judicial review claim against Amber Valley Borough Council.

The planning permission had been granted by the council’s planning board contrary to the officer’s advice. That advice included a finding that the application site lay outside the built framework of the village. Mr Justice Hickinbottom described the officer’s report recommending refusal as ‘model’ and accepted Wigley’s submissions that, against this, the reasons on the grant of planning permission were inadequate, failed to indicate why the officer’s advice had been rejected and betrayed a likely substantial failure of the board to grapple at all with the real issues in the case. The judicial review succeeded on that point (Ground 2).

Another ground (Ground 1) included the claim that the material considerations given in the minutes and the decision notice to justify permission being granted contrary to policy were not the actual reasons of the board for its decision but were instead constructed by officers after the meeting as ex post justification.

This ground was based on the fact that there was very little, if any, discussion by members at the meeting of any such material considerations and that some of the material considerations included on the decision notice had never been mentioned at all at the meeting.

Because of his conclusion on Ground 2, it was unnecessary for the judge to decide whether this properly founded a separate ground for setting the board’s
decision aside. Bearing in mind the recent decision in R (Bishop’s Stortford Civic Federation) v East Hertfordshire District Council [2014] EWHC 348 (Admin), the judge acknowledged that the courts are, very properly, wary about intruding into the political debates of a planning committee such as the board.

Absent allegations of bias or bad faith — and no such allegations were made here — the court will usually accept reasons that are given and decline to examine the debate and discussions that led to them (Bishops Stortford case at [40]; and RKT Investments v Hackney Borough Council [1978] 36 P & CR 442). However, he also acknowledged that there is no reported case concerning a situation where someone in the position of the claimant seeks to challenge the accuracy of planning meeting minutes or official reasons given.

For all those reasons, given his firm conclusions on Ground 2, the judge was reluctant to embark on detailed consideration of Ground 1, when it was not necessary for the determination of the claim. However, he did go so far as to express concern at what had happened in this case: ‘Suffice it to say that, even adopting the most cautious approach, it does seem to me that, on the evidence I have seen, the way the board went about its business is the cause of some concern, and it is further evidence that the board never really identified the issues with which they had to grapple and which it had to determine, in this instance whether, as the proposed development was contrary to Policy H4, there were material considerations that outweighed that fact.’

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