A challenge of planning judgment

The High Court decision in dismissing a challenge against the grant of permission for development in an Area of Outstanding Natural Beauty (AONB) has helpfully underlined hurdles to interfering with the merits of controversial decisions, writes Megan Forbes.

In the case of R v Cornwall Council and Cape Cornwall Club Ltd [2022] EWHC 2402 (Admin), the Judge upheld Cornwall Council’s decision to grant planning permission for development within the Cornwall AONB against the recommendation of the AONB Unit, and dismissed the Claimant’s argument that the planning officer had failed to properly assess the intensification of the development and the harm to the character of the AONB and dark skies.

Cornwall Council granted planning permission for development at Cape Cornwall Golf and Country Club which included a function room extension and erection of buildings to house events guests. The AONB Unit stated that the provision of additional accommodation to support events was likely to create issues within the remote and isolated location, the intensification would be conspicuous and detract from the character of the location, and the development would not respect the dark skies.

However, the planning officer took a different view to the AONB Unit and considered the proposals would decrease the amount of light spill on the dark skies, would not result in any significant additional noise, and would conserve and enhance the AONB. On the issue of intensification, the officer noted no restrictive conditions had been imposed previously in regards to events, and that it would be unreasonable to now impose restrictive conditions on their operation. The officer’s report concluded that the development complied with the development plan.

The Claimant challenged the decision on three grounds, relating to the failure to assess the AONB harm, and failure to provide adequate reasoning regarding intensification and highways impacts. The Council noted that in reality, the claimant’s case was a challenge to the way in which the Council exercised its planning judgment.

The Judge held that the officers’ report clearly considered the letter from the AONB Unit and gave direct consideration to the relevant policies in the Cornwall Local Plan. The planning officer expressly addressed the relevant policies and issues, and reached their own view as a matter of planning judgment, which whilst different to the AONB Unit, was not irrational or unreasoned. In fact, the planning officer addressed specific details in a way that the AONB Unit had not, such as the in-set design and the reduction in outdoor facilities, and the Council’s conclusion was therefore rational. Whilst the Judge noted there was some sparse reasoning regarding the condition, it was adequately explained that a condition restricting long-existing rights would be unreasonable. The Judge also confirmed that the weight given to the evidence as to highways impacts was a matter for the Council exercising its planning judgment and was clearly rational.

The case confirms the established principle that the exercise of planning judgment is a matter for the decision-maker and one that the courts will be very reluctant to interfere with. The threshold for proving Wednesbury unreasonableness will always be high, and local authorities are entitled to disagree with representations where there is adequate explanation.

It is worth noting that although the AONB Unit is a non statutory consultee, its status has previously been recognised by the Planning Inspectorate and Secretary of State as deserving of “great weight” to its views (see the Secretary of State Call-in Decision in Land at Winslade Farm, Frogmore, Kingsbridge, Devon). Although it was not raised in this case, applicants should consider whether the reasons for disagreeing with the AONB Unit’s views are properly explained, particularly where it relates to analysis rather than balancing judgment.

Megan Forbes is an Associate in the Planning and Public Law Team at Dentons. This article first appeared on the firm’s Planning Law Blog.