Cairns, R (On the Application Of) v Hertfordshire County Council, Court of Appeal - Administrative Court, August 02, 2018, [2018] EWHC 2050 (Admin)

Resolution Date:August 02, 2018
Issuing Organization:Administrative Court
Actores:Cairns, R (On the Application Of) v Hertfordshire County Council

Neutral Citation Number: [2018] EWHC 2050 (Admin)

Case No: CO/1681/2018




Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 2 August 2018

Before :


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Between :

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Alex Goodman (instructed by Downs Solicitors LLP) for the Claimant

Richard Glover QC (instructed by the Legal Department) for the Defendant

Isabella Tafur (instructed by the Legal Department) for the First Interested Party

Tim Buley (instructed by the Government Legal Department) for the Second Interested Party

Hearing dates: 10 & 11 July 2018

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Mrs Justice Lang :

  1. The Claimant applied for judicial review of a grant of conditional planning permission by the Defendant to itself, on 15 March 2018, for the construction of a new secondary school, on a site north of Lower Luton Road, Harpenden, Hertfordshire (``the Site''), which is in the Green Belt.

  2. The Site is an open area, about 17.20 hectares in size, comprising grassland used for agricultural purposes (grazing cattle). There are trees and hedgerows on the Site, together with other vegetation. Planning permission has been granted for school buildings, new vehicular and service access, pedestrian access, car parking, cycle storage, coach parking, playing fields, tennis courts/multi-use games area, surface water attenuation measures, hard and soft landscaping and other associated development.

  3. The Claimant's overarching challenge was to the manner in which the Defendant concluded that the proposed development, which would harm the Green Belt, was nonetheless justified by very special circumstances, and so ought to be approved under the development plan (Policy 1 Metropolitan Green Belt) and the National Planning Policy Framework (``the Framework''), at [87].

  4. The Claimant is a local resident who objected to the development in his own right and as chair of a campaign group called Right School Right Place (``RSRP'').

  5. The Defendant is the local planning authority for the area in which the Site is situated.

  6. The First Interested Party (``IP1'') is the education authority for the area which applied for planning permission to construct the school, together with the Education and Skills Funding Agency, an executive agency of the Department for Education. For convenience, they are referred to as ``the Applicants''. The Secretary of State for Education is the Second Interested Party (``IP2'').

  7. Ouseley J. directed that the claim be listed for an expedited rolled-up hearing, as the Applicants hope to commence construction soon to enable the school to open in September 2019.

    Legal and policy framework

  8. Section 70(2) TCPA 1990 provides that, in deciding whether to grant or refuse planning permission, the decision-maker shall have regard to:

    ``(a) the provisions of the development plan, so far as material to the application...

    (b) any local finance considerations so far as material to the application, and

    (c) any other material considerations.''

  9. Section 38(6) of the Planning and Compulsory Purchase Act 2004 (``PCPA 2004'') provides:

    ``If regard is to be 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.''

  10. In City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33, [1997] 1 WLR 1447, Lord Clyde explained the effect of this provision, beginning at 1458B:

    ``Section 18A [the parallel provision in Scotland] has introduced a priority to be given to the development plan in the determination of planning matters......

    By virtue of section 18A the development plan is no longer simply one of the material considerations. Its provisions, provided that they are relevant to the particular application, are to govern the decision unless there are material considerations which indicate that in the particular case the provisions of the plan should not be followed. If it is helpful to talk of presumptions in this field, it can be said that there is now a presumption that the development plan is to govern the decision on an application for planning permission..... Thus the priority given to the development plan is not a mere mechanical preference for it. There remains a valuable element of flexibility. If there are material considerations indicating that it should not be followed then a decision contrary to its provisions can properly be given.

    Moreover the section has not touched the well-established distinction in principle between those matters which are properly within the jurisdiction of the decision-maker and those matters in which the court can properly intervene. It has introduced a requirement with which the decision-maker must comply, namely the recognition of the priority to be given to the development plan. It has thus introduced a potential ground on which the decision-maker could be faulted were he to fail to give effect to that requirement. But beyond that it still leaves the assessment of the facts and the weighing of the considerations in the hands of the decision-maker. It is for him to assess the relative weight to be given to all the material considerations. It is for him to decide what weight is to be given to the development plan, recognising the priority to be given to it. As Glidewell J observed in Loup v Secretary of State for the Environment (1995) 71 P & C.R. 175, 186:

    ``What section 54A does not do is to tell the decision-maker what weight to accord either to the development plan or to other material considerations.''

    Those matters are left to the decision-maker to determine in the light of the whole material before him both in the factual circumstances and in any guidance in policy which is relevant to the particular issues.


    In the practical application of section 18A it will obviously be necessary for the decision-maker to consider the development plan, identify any provisions in it which are relevant to the question before him and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it. He will also have to consider whether the development proposed in the application before him does or does not accord with the development plan. There may be some points in the plan which support the proposal but there may be some considerations pointing in the opposite direction. He will be required to assess all of these and then decide whether in light of the whole plan the proposal does or does not accord with it. He will also have to identify all the other material considerations which are relevant to the application and to which he should have regard. He will then have to note which of them support the application and which of them do not, and he will have to assess the weight to be given to all of these considerations. He will have to decide whether there are considerations of such weight as to indicate that the development plan should not be accorded the priority which the statute has given to it. And having weighed these considerations and determined these matters he will require to form his opinion on the disposal of the application. If he fails to take account of some material consideration or takes account of some consideration which is irrelevant to the application his decision will be open to challenge. But the assessment of the considerations can only be challenged on the ground that it is irrational or perverse.''

  11. This statement of the law was approved by the Supreme Court in Tesco Stores Limited v Dundee City Council [2012] UKSC 13, [2012] P.T.S.R. 983, per Lord Reed at [17].

  12. In Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] UKSC 37 [2017] 1 WLR 1865, Lord Carnwath warned against the excessive legalisation of planning decision-making, based on challenges to the interpretation of national and local policies, (at [23] - [26]). He said (at [26]) that recourse to the courts may sometimes be needed to resolve distinct issues of law, or to ensure consistency of interpretation in relation to specific policies. But issues of interpretation, which are appropriate for judicial analysis, should not be elided with issues of judgment in the application of that policy.

  13. It follows from the principles set out above that the Claimant's challenge to the grant of planning permission can only succeed on public law grounds. The exercise of planning judgment and the weighing of the various issues are matters for the decision-maker and not for the Court: Seddon Properties Ltd v Secretary of State for the Environment (1981) 42 P & CR 26.

    National Planning Policy Framework All references are to the first edition of the Framework published in March 2012, which was operative at the date of the relevant decisions. The second edition was published on 24 July 2018, after the hearing.

  14. The National Planning Policy Framework (``the Framework'') is a material consideration to be taken into account when applying section 38(6) PCPA 2004 in planning decision-making, but it is policy not statute, and does not displace the statutory presumption in favour of the development plan: Hopkins Homes Ltd, per Lord Carnwath at [21].

  15. Relevant parts of the Framework provide:

    ``17. Within the overarching roles that the planning system ought to play, a set of core land-use planning principles should underpin both plan-making and decision-taking. These 12 principles are that planning should:


    · take account of the different roles and character of different areas, promoting the vitality of our main urban areas, protecting the Green Belts around them, recognising the intrinsic character...

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