'Clear reasons' important before planning permission can be refused, says expert

Out-Law News | 29 Aug 2017 | 9:42 am | 3 min. read

A judge has quashed the communities secretary's decision to refuse planning permission for a housing development in Cheshire, overruling the decision of the local planning inspector.

The detailed judgment, which turned on what the judge saw as a lack of evidence provided by Sajid Javid that certain conditions imposed by the inspector were not sufficiently precise and would be difficult to enforce, should remind decision makers of the importance of giving clear reasons in their decisions that enable the parties, and potentially the court, to determine whether there has been a rational or lawful basis for their decision, according to planning law expert Elizabeth Wiseman of Pinsent Masons, the law firm behind Out-Law.com.

"In this instance, while the secretary of state may have been correct in his conclusion that a training and employment condition was not necessary to make the development acceptable in planning terms, the failure to provide clear reasons and consider the six tests in the planning policy guidance (PPG) prejudiced the developer, Mr Verdin," she said.

The court disagreed with the conclusions of the secretary of state, and said that there was no rational ground on which the structure could be said to be inconsistent or otherwise imprecise and there was no evidence that there would be any difficulty in enforcing the condition. The court was unable to conclude what the secretary of state's decision would have been if that evidence had been taken into account, and therefore the decision was quashed.

However, the judgment does not necessarily mean that similar cases would automatically be decided in favour of developers, Wiseman said.

"Anyone that wishes to challenge a decision on the ground that a condition does not meet the relevant tests should remember that such a challenge would only succeed if the party aggrieved can demonstrate to the court that they have been prejudiced due to the failure to provide a sufficiently reasoned decision," she said.

The developer, Richard Verdin, applied for outline planning permission for up to 184 residential properties on the edge of Winsford, Cheshire, in July 2013. His application was originally refused on grounds of prematurity, as the neighbourhood plan for the area was still at examination stage. Verdin appealed and the case went to inquiry, where a planning inspector recommended allowing the appeal subject to conditions.

The communities secretary then reopened the inquiry, following adoption of both the Winsford neighbourhood plan and the council's local plan. Verdin proposed new conditions: increasing the proportion of affordable housing provided for at the site; allocating 10% of homes for self-build; requiring the market homes to be built by smaller local builders; spending 20% of construction cost locally; and employing at least 50% of the workforce from the local area.

The inspector once again recommended allowing the appeal. However, Javid refused planning permission on the grounds that the proposed development would be "contrary to the development plan overall". He also found that the local training and employment condition "would not be necessary to make the application acceptable in planning terms", was drafted in a way that was "not sufficiently precise" and "would be difficult to enforce, partly because it would be difficult to detect a breach".

In his judgment, deputy High Court judge Robin Purchas QC upheld three of Verdin's 12 grounds of appeal. He ordered Javid's decision to be quashed, on the grounds that he had not attached sufficient weight to the economic factors. He also found that the specific points on which Javid had relied to discount the conditions had not even been raised at the inquiry.

"The decision appears to be inconsistent with the conclusions on appeal by or on behalf of [the secretary of state] on similar conditions, of which one at least was before the inspector at the original inquiry," the judge said.

"It has not been submitted that the point of precision was directed to the revision to the condition but, if it was, it is not easy to see why the additional definition of the steps to be taken should offend that test in the [NPPF] or [NPPG]. There is no evidence of any particular difficulty in enforcement or detection, at least to the extent which would affect the overall aims of the condition in this area of deprivation and joblessness. [Javid] does not explain in either case what that might be and has not caused any explanation to be offered to the court," he said.

"Given the absence of evidence of difficulty in enforcement or any objection on the grounds of lack of precision and the apparent inconsistency with the acceptance of similar conditions on other appeals, in my judgment [Javid] was here under a duty to provide more by way of reasons as to why he had concluded that there was the insufficient precision of the difficulty in enforcement and detection. That would enable the parties and the court to determine whether there was indeed a rational or lawful basis for the decision," he said.

The judge came to similar conclusions about Javid's rejection of the conditions on using local builders and local procurement.