Another case on reasons

Some topics keep on coming up in the Courts. One of these is the requirement for a local planning authority to give a summary of its reasons for granting planning permission. I have commented on several previous cases which deal with this issue.

The most recent is the Court of Appeal decision in R (Siraj) v Kirklees Metropolitan Council [2010] EWCA Civ 1286. This was a case involving a site in the Green Belt. The appellant seeking to quash a grant of planning permissions by the Council is a local resident, who, together with other local residents, objected to the proposed development. The planning officer's report had recommended that planning permission should be granted, explaining that the application had been referred to the relevant subcommittee by officers "due to the sensitive nature of the proposal in the Green Belt". The officers’ report stated (among other things) that "It is appreciated that this application is a departure from green belt policy but hope that weight is given to the efforts the business has made to find more suitable land / premises and the need for this business to be retained in this area for the reasons outlined." The officers conceded that “The proposal is without question inappropriate development in the Green Belt. UDP policy D8 states that such development will not be granted in the Green Belt unless very special circumstances can be demonstrated by the applicant. This is reflected in PPG 2 which states that very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.”

The officers’ recommendation was accepted and the sub-committee granted planning permission. The decision notice said that: "The applicant has demonstrated the specialist nature of his operation, the operational requirements of customers, the difficulties of remaining in his present location and the lack of other suitable alternative sites all of which are considered to comprise very special circumstances to justify this inappropriate development in the Green Belt. Further the design and materials would not be harmful to the character of the area nor would the use be harmful to road safety."

One limb of the legal challenge related to ‘very special reasons’ justifying a grant of planning permission for inappropriate development (as defined by PPG2) in the Green Belt. However, the challenge on this ground failed.

The other limb of the challenge related to the adequacy of the summary reasons given for granting planning permission. However the Court of Appeal was careful to distinguish between the reasons which the Secretary of State must explain in determining a called-in application or a planning appeal compared with the summary reasons for the grant of planning permission required by Art 22 of the GDPO (now Art. 31 of the DMPO).

In the view of the Court, against the background of the officer's report, it was not in the least surprising that the summary reasons for granting planning permission did not repeat the appropriate test (which had been fully and correctly set out in the officers’ report) or refer to PPG 2 but simply referred to the fact that, in the members' view, the applicant for planning permission had demonstrated the existence of four factors which comprised "very special circumstances to justify the inappropriate development in the Green Belt". Had the summary reasons merely stated that the applicant had demonstrated the existence of the four factors, there might have been some support for the appellants’ contention that the members had merely considered whether those factors had been established and had not gone on to consider whether they were very special circumstances which clearly outweighed the harm done by reason of inappropriate development in the Green Belt or that, if they did go on to consider that question, it was not sufficiently clear from the summary reasons that they had done so. But the summary reasons did not stop there. They made it clear that the members considered that those four factors comprised "very special circumstances to justify this inappropriate development in the Green Belt".

There was no force in the appellant's submission that the summary reasons did not explain why the four factors amounting to very special circumstances outweighed the objection to inappropriate development in the Green Belt. This was a summary. In that summary the respondent was not required to give reasons for reasons. Indeed it was difficult to see what more could sensibly have been said. Provided the four factors were capable of amounting to very special circumstances clearly outweighing the harm caused by inappropriate development in the Green Belt, the question for the members was: did they or did they not clearly outweigh that harm? The conclusion that they did sufficiently explained, particularly in summary form, why planning permission was granted. Further analysis in the summary reasons was not required.

It is perhaps surprising that the cases on which I commented in previous posts some time ago were not referred to in the judgment. However, this judgment affirms the general approach of the courts which is not unduly demanding as to the summary of reasons required to comply with what is now Art. 31 of the DMPO.

© MARTIN H GOODALL