Perils of going against officer advice

Skiing off-piste is dangerous. Reasons include instability of snow, hidden rocks and cliff edges and inaccessibility. Similarly, if local authority planning committee members go ‘off-piste’ in determining an issue against officer recommendations, without giving intelligible and adequate reasons for doing so, their decision risks a fatal crash in the High Court. So on 21 May 2021 Mrs Justice Tipples quashed planning consent given by Cornwall County Council for the development of a detached two-storey agricultural dwelling with garage and parking in the Rame Head area of outstanding natural beauty (AONB) against officer recommendations. This was because the council ‘was under a common law duty to give reasons for the grant of planning permission’ and it was ‘a case where the defects in reasons go to the heart of the justification for permission and undermine its validity.’ The case in question was R (Cross) v Cornwall Council [2021] EWHC 1323 (Admin).

The planning applicant, Mr Wilton, is a farmer operating a diversified farming business and the proposed development was to provide a home for him and his family. Pre-application advice from an AONB planning officer indicated that in its location ‘development of the type envisaged is likely to be conspicuously visible’ and  ‘any such visibility would be harmful to the landscape of the area’. The claimant resides about a mile from the site and has lived with his family on the Rame Peninsula for over 30 years. He was concerned about the adverse impact any unsuitable development may have in the area in the light of its natural beauty, rare wildlife and history.

He contended that the council’s decision to grant planning permission was unlawful because: (i) the committee failed to provide adequate reasons as to why the committee departed from the recommendations in the officer’s report (OR) and those made by the AONB officer, in particular with regard to the impact on the AONB; and (ii) the council (among other things) failed to determine whether or not the proposed development accords with the development plan and the AONB management plan.

When the council’s east sub-area planning committee (the committee) met remotely on 17 August 2020 to consider the application, members had before them what the court referred to as ‘a detailed and comprehensive report’. This concluded (among other things) that: ‘The proposed development as a result of its siting, scale, materials and design will result in a prominent and incongruous addition to the coastal plateau that will harm the landscape and distinctive scenic beauty of the Cornwall [AONB] and heritage coast. The social and economic benefits of the development do not outweigh the landscape harm.’

Following a ‘full and detailed debate’, the chairman invited councillor Parsons to identify his reasons for opposing the officer recommendation. He did this as follows: ‘Policy seven [of the local plan].  The development of new homes in the open countryside will only be permitted where there are special circumstances, full-time agriculture and other rural occupation workers where there is up-to-date evidence of an essential need of the business for the occupier to live in that specific location as supported by the county land agent. The planning officer said that reason was reasonable and that the issue here, as everybody knows, is about the balance of considerations, so the agricultural need versus the AONB landscape.’

The chairman then proposed approval of the application against officer recommendations and this was carried by seven votes to six. However, the court noted that ‘no time was taken at the meeting to prepare a statement of reasons limited to the points of difference between the committee and the planning officer’s recommendation’.

Tipples J said that in a judicial review claim, it is for the claimant to establish a public law error by the decision-maker. Planning judgement is for the decision-maker and not the court. She noted the dicta of Lord Brown in South Buckinghamshire District Council and Another v Porter (No 2) [2004] UKHL 33 concerning the proper approach to a planning reasons challenge, i.e. (among other things) that: ‘The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision.’

She also noted Lord Carnwath’s approval of the ‘useful’ decision-making advice provided by the Lawyers in Local Government Model Council Planning Code and Protocol (2013) in R (CPRE Kent) v Dover District Council and another [2018] 2 All ER 121: ‘Do make sure that if you are proposing, seconding or supporting a decision contrary to officer recommendations or the development plan that you clearly identify and understand the planning reasons leading to this conclusion/decision. These reasons must be given prior to the vote and be recorded. Be aware that you may have to justify the resulting decision by giving evidence in the event of any challenge.’

The court noted the two key issues underlying the officer recommendation for planning permission refusal, namely: (i) that the proposed development would harm the landscape and the AONB’s distinctive scenic beauty; and (ii) the social and economic benefits of the proposed development were outweighed by the AONB landscape harm. Nevertheless, it was plain that the reasons contained in the resolution passed at the 17 August 2020 meeting did ‘not articulate any reasons identifying why, in respect of these two key issues, the committee departed from the planning officer’s recommendation’. Consequently, as noted, the defects in reasons undermined the validity of the permission and so ‘the only appropriate remedy’ was to quash the planning permission decision.

Nicholas Dobson writes on local authority, public law and governance