Steer, R (On the Application Of) v Shepway District Council, Court of Appeal - Administrative Court, February 16, 2018, [2018] EWHC 238 (Admin)

Issuing Organization:Administrative Court
Actores:Steer, R (On the Application Of) v Shepway District Council
Resolution Date:February 16, 2018

Neutral Citation Number: [2018] EWHC 238 (Admin)

Case No: CO/3051/2017




Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 16 February 2018

Before :


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Between :

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Marc Willers QC (instructed by Richard Buxton) for the Claimant

Daniel Stedman Jones (instructed by LRS Solicitors & Planning Consultants) for the Defendant

Megan Thomas (instructed under the Direct Access Scheme) for the Interested Parties

Hearing date: 25 January 2018

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Mrs Justice Lang :

  1. The Claimant applies for judicial review of the decision by the Defendant (``the Council'') on 18 May 2017 to grant planning permission to the Interested Parties (``the IPs'') for a holiday park on their land at Little Densole Farm, Canterbury Road, Densole, Kent, CT18 7BJ (``the Site'').

  2. The Claimant lives near to the Site and objected to it in the planning application procedure.

  3. The Site comprises about 13.5 acres (5.5 ha) of agricultural land. It is located in open countryside to the east of the village of Densole, within an area designated nationally as the Kent Downs Area of Outstanding Natural Beauty (``AONB'') and locally designated as a Special Landscape Area (``SLA'').

  4. The application was validated on 10 June 2016. It was considered by the Council's Planning and Licensing Committee (``the Committee'') on 28 February 2017. The Officer's Report (``OR'') recommended that the application should be refused. However, the Committee resolved to grant the application. Planning permission was granted for 12 holiday lodges, a reception building, a store building, formation of a fishing lake, a car park, tennis courts, a children's play area and a putting green.

  5. Wyn Williams J. granted permission to apply for judicial review on grounds 1, 2 and 3 only. He refused permission in respect of the challenge to Local Plan Policy TM4 and to the screening opinion under the Town and Country Planning (Environmental Impact Assessment) Regulations 2011.

  6. At the start of the hearing, I ruled that the witness statements from Mr Geering, Head of Planning, and Ms Claire Dethier, Development Management Team Leader, at the Council, were not admissible because they gave ex post facto reasons for the decision in an attempt to answer the Claimant's criticisms in the litigation. Applying the principles and authorities helpfully set out by Green J. in Timmins v Gedling BC [2014] EWHC 654 (Admin), at [109] - [114], I concluded that they were self-serving statements, intended to ``plug the gap'' in the Defendant's contemporaneous documentation, and so were inadmissible. Part of their evidence purported to give an account of what was said at the meeting which could, in principle, have been admissible. However, their accounts were inconsistent with each other, not supported by any contemporaneous notes, and also hotly contested by Councillors Lawes and Govett who were present at the meeting and opposed the development. In those circumstances, I could not treat any of their witness statements as a reliable record of the meeting. For the same reasons, I also ruled that Mr Westgarth's witness statement, giving his account of the meeting, was inadmissible ex post facto evidence and not a record which could be relied upon.

  7. The Claimant and Defendant agreed that the Claimant's note of the Committee's meeting of 28 March 2017 was accurate and the IPs did not identify any inaccuracy. It was relevant and so I admitted it in evidence.

    The Committee's decision

  8. The only record of the Committee's decisions was in the minutes - there was no recording and no contemporaneous note taken.

  9. The minutes of the Committee's meeting of 28 February 2017 stated:

    ``2. Y16/0623/SH: Little Densole Farm, Canterbury Road, Densole

    Siting of 12 holiday lodges and erection of a reception building and a store building, together with formation of a fishing lake, a car park area, tennis courts, a children's play area, and a putting green, to create a tourism site.


    Mr Joseph Wright, a local resident, spoke in favour of the application. He said this development would boost the local economy and that although the site is in an AONB, trees and shrubs would be planted and this site would be an excellent opportunity to `show off'' the AONB.

    Councillor Godfrey, the Ward member, spoke in favour of the application. He was encouraged by the fact that this development seems to be sensitive to its surroundings, is of high quality and will attract tourism.

    Mr Jonathan Moore Lambe, the agent for the applicants spoke on their behalf. Mr Moore Lambe explained this is an exclusive holiday facility aimed at wheelchair users. He mentioned it would be an excellent facility to be promoted to tourists visiting Kent.

    Councillors, having regards to the requirements of Development Plan policy and Government advice set out within the NPPF felt that, on balance, the development would conserve and preserve the scenic beauty of the AONB whilst also providing significant employment and tourism benefits and enhancing the North Downs and wider district. Councillors considered that the AONB location was suitable and that the application demonstrated that there would not be harm to the AONB, which is given the highest status of protection in the NPPF. Councillors considered the development therefore complied with policy and constituted sustainable development.

    Proposed by Councillor Dick Pascoe

    Seconded by Councillor Peter Simmons and

    RESOLVED that planning permission be granted and the Head of Planning be granted delegated authority to negotiate with the applicants the detail of the conditions to be imposed.''

  10. When the draft minutes were submitted to the Committee for approval, at their next meeting on 28 March 2017, Councillor Lawes objected to them on the grounds that ``none of this paragraph 6 was actually said within the meeting, and things that were said aren't in the minutes .... Councillor Pascoe was asked by the Head of Planning what were his reasons to [sic] approving the application because it was recommended to be refused and Cllr Pascoe said he wanted to overturn everything that was recommended to be refused. No other comment was made than that.....'' Councillor Lawes was supported by Councillor Govett.

  11. In reply, Councillor Pascoe said:

    ``To clarify ......what I stated was, all the reasons for refusal of the application, were my reasons for approval. So all you have to do is to just turn the wording around and that was the words I used and I am seeing nods as well, that's what I actually asked for. That the reasons for approval, were it to be opposite of my reasons for approval and that is why this is staying as it is because this is exactly what I said and asked for ...''

  12. A discussion took place in which Councillor Hollingsbee (who was not at the meeting) gave her explanation for the wording of the minutes:

    ``This isn't what the councillors ... this isn't word for word what the councillors said, this is what Ben [Head of Planning] has read back as being the reasons that councillors felt it should be approved. And that would've been agreed, because that's what we do, what we always do, as an overturn.''

  13. The Committee then voted to approve the minutes unamended, by 7 votes to 2, with 2 abstentions.

    Legal framework

    (i) Judicial review of planning decisions

  14. In a claim for judicial review, the Claimant must establish a public law error on the part of the decision-maker. This may be that the Council misdirected itself in law, or acted irrationally, or failed to have regard to relevant considerations or that there was some procedural impropriety.

  15. 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. An application for judicial review is not an opportunity for a review of the planning merits: Newsmith v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74, per Sullivan J. at [6].

  16. In Hopkins Homes v Secretary of State for Communities and Local Government [2017] UKSC 37, Lord Carnwath said, at [26]:

    ``26. 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, as in the Tesco case. In that exercise the specialist judges of the Planning Court have an important role. However, the judges are entitled to look to applicants, seeking to rely on matters of planning policy in applications to quash planning decisions (at local or appellate level), to distinguish clearly between issues of interpretation of policy, appropriate for judicial analysis, and issues of judgment in the application of that policy; and not to elide the two.''

    (ii) Decision-making

  17. The determination of an application for planning permission is to be made in accordance with the development plan, unless material considerations indicate otherwise. Section 70(2) of the Town and Country Planning Act 1990 (``TCPA 1990'') provides that the decision-maker shall have regard to the provisions of the development plan, so far as material to the application.

  18. 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.''

  19. National policy expressed in the National Planning Policy Framework (``NPPF'') is a material consideration.

  20. The duty under the equivalent Scottish provision was explained by Lord Clyde in Edinburgh City Council v Secretary of State for Scotland [1997] 1 W.L.R. 1447, at 1459:

    ``In the practical application of section 18A it will obviously...

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