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Judge quashes grant of permission for holiday park over failure to give reasons

A Planning Court judge has quashed Shepway District Councils grant of planning permission for a holiday park in an Area of Outstanding Natural Beauty.

In February 2017 the councils planning and licensing committee had considered the application for the park on land near the village of Densole, Kent.

The site comprises about 13.5 acres of agricultural land. It is located in open countryside to the east of the village of Densole, within an area designated nationally as the Kent Downs Area of Outstanding Natural Beauty and locally designated as a Special Landscape Area.

The officer's report recommended that the application should be refused.

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However, the committee resolved to grant the application. Planning permission was granted for 12 holiday lodges, a reception building, a store building, formation of a fishing lake, a car park, tennis courts, a children's play area and a putting green.

The claimant lived near to the site and objected to it in the planning application procedure. His grounds of challenge were:

i) The council failed to consider or apply NPPF [116] when deciding the application.

ii) The council reached an irrational conclusion that the proposed development would not harm the Kent North Downs AONB.

iii) The committee was under a common law duty to give reasons for its decision, as it was not following the officer’s report's recommendation, and the application concerned a protected AONB. It failed to provide adequate and intelligible reasons for its decision to grant planning permission.

In Steer, R (On the Application Of) v Shepway District Council [2018] EWHC 238 (Admin) Mrs Justice Lang quashed the planning permission.

On ground i), she said that because of the lack of any reliable record of the meeting, she could not “be satisfied, on the balance of probabilities, that the Committee did not consider NPPF [116], and since the burden of proof rests upon the Claimant, his challenge under Ground 1 does not succeed”.

Similarly, on ground ii) Mrs Justice Lang she said: “As I do not know what the Committee's reasons were, I am unable to judge whether or not the Committee was acting irrationally. There is a high threshold to surmount before a finding of irrationality can properly be made. The burden of proof rests upon the Claimant, and I consider he has failed to establish irrationality. For these reasons, Ground 2 does not succeed.”

However, the judge upheld the challenge on the third ground, finding a breach of the common law duty to give adequate reasons.

“As I have found under Grounds 1 and 2, the Committee's reasoning did ‘give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds’,” she said.

“This has prejudiced the Claimant in this claim for judicial review, since he has been unable to establish his case under Grounds 1 and 2. Therefore, I conclude that the reasons were inadequate and Ground 3 succeeds.

Mrs Justice Lang noted Lord Carnwath’s conclusion in the case of CPRE (Kent) that the Planning Committee's failure to explain the reasons for its decision, and its departure from the Planning Officer's recommendations:

"… raises a "substantial doubt" (in Lord Brown's words) as to whether they had properly understood the key issues or reached "a rational conclusion on them on relevant grounds". This is a case where the defect in reasons goes to the heart of the justification for the permission, and undermines its validity. The only appropriate remedy is to quash the permission."

She said: I have reached the same conclusion in this case. The defect in reasons goes to the heart of the justification for the planning permission and undermines its validity. I am unable to conclude, under section 31(2A) of the Senior Courts Act 1981, that it is highly likely that the outcome would not have been substantially different if the Committee had addressed its mind properly to the reasons for rejecting the matters raised in the OR and by the objectors, and to the application of the NPPF [116]. In my judgment, the decision must be quashed.”

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