Planning permission overturned for irrational reasoning and apparent bias

Background

The development which had been granted planning permission by North Devon District Council (the “Defendant”) consisted of the erection of a singular open market dwelling (the “Development”) in Patchole, a small settlement centred around a road junction in Barnstaple, Kentisbury. Mr Perrin (the “Claimant”) had objected to the application as an owner and occupier of a nearby dwelling. 

A particular source of contention was whether the Development complied with Policy DM23 of the North Devon & Torridge Local Plan 2011-2031 (the “Development Plan”) which provided that were a site is not within the built form of an existing settlement but merely “well related to the main built form of the settlement”, development would be supported where it was affordable housing focused. It was this policy context that resulted in the application being called in for determination by the Planning Committee (the “Committee”). 

The first officer’s report recommended refusal of the application on the basis that the site was not within the built form of the Patchole settlement (despite being “well related”) and did not meet an identifiable need for affordable housing. However, the Committee resolved to grant permission on the basis there was accordance with Policy DM23. This was challenged by the Claimant by way of a pre-action protocol letter and subsequently quashed by consent on the basis of a failure to provide adequate reasons for granting permission contrary to the recommendation of the Officer’s Report. 

Upon redetermination, the Committee at first instance resolved to grant permission on the basis of findings from the Planning Inspectorate (in a prior unrelated appeal case) as to what a principle built form could consist of, however the Defendant remitted this decision again following legal advice and publication of the National Planning Policy Framework (December 2024) (the “NPPF”), specifically the need for a ‘tilted balance’ assessment. The revised officer’s report (the “Officer’s Report”) considered that Policy DM23 had limited weight due to the absence of a 5-year housing supply, meaning that the presumption in favour of sustainable development applied. Nevertheless, the report found this was offset by significant weight to be afforded to the retention of the site for affordable housing rather than open market housing and on that basis recommended refusal.  The Committee disagreed with this assessment, giving increased weight to producing another property for the vitality of the village in accordance with the aspiration of community growth in Policy ST01 on sustainable development. They therefore resolved to grant permission. 

Findings

HHJ Russen KC dealt with the following grounds together:

• Ground 1: Irrationality, irrelevant consideration and inadequate reasons in the Council’s finding that the Development accorded with Policy ST01
• Ground 2: Irrationality and a failure to provide adequate reasons in relation to the failure of the proposed development to meet an identifiable need for the provision for affordable housing focused development.
• Ground 3: Irrationality, irrelevant consideration and inadequate reasons in the Council’s finding benefits in the Development “producing another property for the vitality of the village”.

It was held that Ground 1, 2 and 3 were successful in respect of inadequate reasons and irrationality. HHJ Russen KC found that the planning committee did not explain the basis for concluding that the development of an open market dwelling as opposed to an affordable housing dwelling was to be given greater weight in producing another property for the vitality of the village than the social perspective in Policy ST01, ST19 and DM23. They were entitled to give these policies limited weight (as the Officer’s Report had done) but did not appear to have the “particular regard” required by NPPF paragraph 11 (d) iii to the relevant policy framework in relation to affordable homes.  The Officer’s Report had still given significant weight to the retention of the site for affordable housing notwithstanding the presumption of sustainable development. The Committee did not adequately explain why they had taken a different view by not engaging with the officer’s view that the Site was only well related to the main built form of the settlement and not in fact within its principal-built form. 

In respect of irrelevant considerations, HHJ Russen KC considered the committee’s references to an “aspiration of community growth” and “enhancing the vitality of the village” as addressing the economic perspective under paragraph 8 of the NPPF to which the Officer Report attributed only limited weight in the assessment of the titled balance. 

Ground 4: Apparent Bias

HHJ Russen KC upheld the Claimant’s allegation of apparent bias through the participation of Counsellor Prowse in the decision-making process. This was based on the Counsellor’s personal familiarity with the applicants (including remarks about their family in the Committee Meeting), his direct involvement with them before and during the planning process (e.g. through providing procedural advice related to the application) and their intervention by way of calling the application in to the committee. This was compounded by the number of times the Committee had reached a decision contrary to the recommendation in the Officer’s Report, and Counsellor Prowse’s influence over other members given his seniority as a Councillor. Even if the other grounds had not succeeded, it was held that this ground alone would have been sufficient. 

Impact of this case

This decision emphasises the importance of substantiating a decision to go against an officer’s report with reasons which directly engage with the officer’s reasoning and why a departure is necessary. This is particularly so where the planning committee arrives at a different conclusion in respect of accordance with planning policy. The decision also provides a clear reminder of the standards expected of councillors whose participation in the decision-making process may be influential. Such councillors should exercise caution where they have personal familiarity with applicants and provide procedural advice (even if permitted to do so).