Council wins appeal in case where relevant policies of development plan pointed “in different directions"

Cornwall Council has won an appeal over whether its grant of planning permission for new holiday lodges was lawful in a case where relevant policies of the development plan pointed “in different directions".

Lord Justice Lindblom said the basic question in Corbett, R (On the Application Of) v [2020] EWCA Civ 508 was whether Cornwall, the local planning authority, erred in law in granting planning permission for a development it found to be in conflict with development plan policies for the protection of Areas of Great Landscape Value (“AGLV”) but compliant with other relevant policies, including a policy encouraging development for tourism, and thus in accordance with the plan as a whole.

In May 2019 Mr C.M.G. Ockelton, Vice President of the Upper Tribunal (Immigration and Asylum Chamber), sitting as a deputy judge of the High Court, quashed the council's grant of planning permission for development proposed by the interested party, Mr Steven Tavener, on land to the east of the Sun Haven Valley Caravan Park at Mawgan Porth in Newquay.

The respondent, William Corbett, was a parish councillor on the St Mawgan in Pydar Parish Council and leader of its Planning Group. The parish council was an objector to the proposed development.

The application for planning permission had been made on 11 October 2017. The proposal was described in the application as "Use of land for the stationing of 15 static holiday caravans and 15 holiday lodges, provision of access and car parking".

The development would extend the existing caravan site – a site of about 2.7 hectares, with 100 pitches for caravans and tents and 39 static caravans – on to an adjacent field of 1.6 hectares.

The site is in the countryside, not in the Cornwall and Tamar Valley Area of Outstanding Natural Beauty, but in the Watergate and Lanherne AGLV.

The council's decision to approve the proposal was taken at a meeting of its Central Sub-Area Planning Committee on 19 February 2018. Planning permission was granted on 1 March 2018. It was challenged by Mr Corbett in a claim for judicial review issued on 11 April 2018.

After Judge Ockelton quashed the grant of planning permission, Cornwall appealed.

Lord Justice Lindblom said three main issues arose from the two grounds of appeal and the respondent's notice:

1. whether the judge was wrong to hold that the council's decision to grant planning permission was a determination not in accordance with the development plan, because Policy 14 of the Restormel Local Plan, which relates to the effect of development on AGLVs, prevented permission being granted;
2. whether he was wrong to find the council's reasons for granting permission, indicated in the officer's report to committee, were inadequate; and
3. whether he should have found that the council acted unlawfully by not identifying Policy 7 of the Cornwall Local Plan: Strategic Policies 2010-2030, which relates to the development of housing in the countryside, as relevant to the proposal.

Allowing the council’s appeal, Lord Justice Lindblom said he would not go so far as to say that, as a matter of principle, the breach of a single policy of a development plan could never be capable of amounting to conflict with the plan as a whole.

But he said that that general question was not the issue here. “We need only decide whether, on their correct interpretation, the policies with which we are concerned had such an effect, so that any conflict at all with Policy 14 and Policy 23 [relating to the effect of the development on Cornwall's 'natural environment', including its landscape] would inevitably deprive a proposal of the statutory ‘presumption in favour of the development plan’ – as Lord Hope described it in City of Edinburgh Council (at p.1449H). I do not think they did.”

The Court of Appeal judge said: “In my opinion this is a case in which, on their correct interpretation, the relevant policies of the development plan were – as Lewison L.J. put it in TW Logistics Ltd. (at paragraph 18) – "[pointing] in different directions".

“Policy 5, supportive of new ‘tourism … accommodation’ being developed in Cornwall, worked in favour of the proposal. Policy 23 and saved Policy 14, unfavourable to development that would harm the Area of Great Landscape Value, worked against it.

“It was for the council as local planning authority, responsible for the day-to-day application of development plan policy, to ‘decide which policy should be given greater weight [in this] particular decision’.”

The Court of Appeal judge said that the officer's assessment in her report sat well with that analysis. “She did not misinterpret any of the relevant policies, including Policy 14, or fail to grasp how those policies interact with each other. Nor did she fall into error when applying them to the development proposed.”

Lord Justice Lindblom continued: “How was the committee to resolve the tension between policy support for the proposal and policy conflict when deciding whether it was in accordance with the development plan as a whole?

“The answer is not that, as a matter of ‘necessary inference’, Policy 14 on its own, or together with Policy 23, dictated the outcome. Under section 38(6) the members' task was not to decide whether, on an individual assessment of the proposal's compliance with the relevant policies, it could be said to accord with each and every one of them. They had to establish whether the proposal was in accordance with the development plan as a whole. Once the relevant policies were correctly understood, which in my view they were, this was classically a matter of planning judgment for the council as planning decision-maker.”

Lord Justice Lindblom said that neither that exercise of planning judgment under section 38(6) of the Planning and Compulsory Purchase Act 2004 nor any of the ingredient planning judgments made in the course of the officer's assessment of the proposal on its merits was irrational, or vulnerable in any other way to criticism in a public law challenge.

The Court of Appeal judge also said that he rejected the complaint that the officer’s reasons fell short of what was required, adding that he could not see how her report was defective.

“The officer did not mislead the members. She identified the relevant policies of the development plan, evidently understood those policies correctly, applied them lawfully, addressed the other material considerations, including relevant policy in the NPPF, and guided the committee appropriately in discharging their duties under section 70(2) of the 1990 Act and section 38(6) of the 2004 Act. The assessment and advice in her report are legally sound.”

Lord Justice Lindblom also found in favour of the council on the third issue relating to policy 7 of the Cornwall Local Plan. “In this case the council's committee, in the light of the officer's advice, was entitled to deal with Mr Tavener's proposal as ‘tourism … accommodation’ of the kind that earns the support of Policy 5, and not also within the reach of Policy 7.”

The officer had not been wrong to conclude that the proposal did not have to be considered under Policy 7 in addition to Policy 5. Nor did she misinterpret Policy 7.

Lord Justice Lindblom concluded that it was worth recalling what Baroness Hale of Richmond said about decision-making by local planning authorities in R. (on the application of Morge) v Hampshire County Council [2011] UKSC 2; [2011] 1 WLR 268 (at paragraph 36): that "in this country planning decisions are taken by democratically elected councillors, responsible to, and sensitive to the concerns of, their local communities", who "go about their decision-making in a different way from courts", aided by "professional advisers who investigate and report to them", and it is "their job, and not the court's, to weigh the competing public and private interests involved".

The Court of Appeal judge added: “I think it can fairly be said that, in undertaking that role, the professional officers of a local planning authority, and members who sit regularly on a planning committee, will not often be shown to have misinterpreted the policies of its development plan. This is not to cast any doubt on the basic principle that the interpretation of planning policy is ultimately a matter of law for the court, not the policy-making authority, nor is it to overlook Lord Reed's warning in Tesco v Dundee City Council (at paragraph 19) that local planning authorities ‘cannot make the development plan mean whatever they would like it to mean’ – though he did not suggest it was likely that many authorities would think they could. When planning decisions are made, the policies of the local plan must always be properly understood and lawfully applied. Errors of law will sometimes be made, and the court will act when they are.”

Lord Justice Lindblom said that in this case, in his view, no such error occurred. “The council did not misconceive the relevant policies of its plan, and did not apply them unlawfully. Its decision was clearly explained in the officer's report. The grant of planning permission should not have been quashed.”

Lord Justice Leggatt and Lord Justice Lewison agreed.