Council defeats High Court challenge to grant of planning permission against advice of officers

Horsham District Council has defeated a judicial review brought by a local resident against its grant of planning consent to expand a football pitch and fell a veteran ash tree.

The High Court case was brought against the council by Rory Walsh, with the pitch’s owner YMCA Downslink Group an interested party.

Mrs Justice Lang dismissed two grounds argued by Mr Walsh and said a third had become academic.

Horsham had granted consent, contrary to officers’ recommendation, for the YMCA to convert its grass football pitch to an artificial 3G surface, with new perimeter paths, fencing, floodlighting and goal storage area.

Lang J said the main issue was the deterioration and loss of a veteran ash tree as a result of the proposed development.

Its presence had led officers to recommend refusal as the YMCA had failed to demonstrate ‘wholly exceptional reasons’ for the tree’s loss as required by the National Planning Policy Framework (NPPF).

Mr Walsh lives nearby and opposed granting permission. He argued that Horsham failed to give legally adequate reasons for its finding that the relevant test in the NPPF was met and that its decision was irrational.

The court heard the site is some 3.5 acres in size, and has been used for football since 1929. It has a covered seated stand, capacity for 1,575 people, a club house and changing facilities.

Lang J noted that although there is no general common law duty to give reasons for a decision to grant planning permission, the Supreme Court had held that reasons should be given typically where permission has been granted against the advice of officers.

Mr Walsh said the reasons given by Horsham were legally inadequate because they did not explain why the planning committee concluded that the proposed development would ‘enable’ the viability of the club, and why this amounted to a ‘wholly exceptional reason’ for granting planning permission. Nor did they explain why the committee disagreed with planning officers.

He also argued that the reasons did not explain what the ‘significant new infrastructure’ in the proposed new development was, or why it amounted to a ‘wholly exceptional reason’, which was not a factor identified by planning officers, and that the reasons tended to suggest the provision of compensatory measures wrongly formed part of the ‘wholly exceptional reasons’ identified by members.

Horsham argued the reasons ought to be read against the officer reports and it was not necessary to repeat the contents of these and could they be briefly stated.

The council said there was no real, as opposed to forensic, difference between the planning officers' conclusions that the 3G pitch would “help to secure the viability of the Football Club going forwards” and the committee’s conclusion that it would “enable the viability of the club”.

It said the 'wholly exceptional reasons’ found by the committee were that the proposal would enable the viability of a long-standing community facility, and new infrastructure would benefit the physical and mental health of the community.

The committee had not disagreed with the officers' identification of factors in favour of the proposal, nor their assessment of viability, but had reached a different conclusion, which it was entitled to do as a matter of planning judgment.

Horsham also said there was no basis for the suggestion that members may have misunderstood what new infrastructure was being provided, as it was clearly set out.

Lang J said: “In my view, the reasons given by the committee met the standard set out by Lord Brown in South Bucks, as adapted to local planning authorities in CPRE Kent, per Lord Carnwath.

“Initially, I was concerned by the brevity of the reasons but, as Lord Brown said, ‘[r]easons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision’.

“In this case, despite their brevity, the reasons given were intelligible, adequate, and enabled the reader to understand the conclusions reached on the principal important controversial issues.”

She said the case was analogous to R (Tesco Stores Ltd) v Reigate and Banstead BC, where members were relying on the same benefits that officers had identified; but while officers considered that the benefits did not outweigh the harm to the heritage assets that had been identified, members felt they did.

Lang J said it was not necessary for the committee to justify its finding of ‘wholly exceptional reasons’.

Mr Walsh’s argument that the provision of compensatory measures formed part of the ‘wholly exceptional reasons’ was wrong and “an example of excessive legalism which has been deprecated by the courts in planning cases”.

She dismissed the irrationality argument, saying Mr Walsh had unfairly minimised the numerous benefits that would flow to members of the local community from the proposal.

“I accept the council's submission that the conclusion that the proposals demonstrated wholly exceptional reasons for the loss or deterioration of [the tree] was within the range of reasonable responses open to the committee,” Lang J said.

“The fact that others may have reached a different conclusion on the same issue does not begin to show that the committee's conclusion was not open to them.”

Mark Smulian