Category: AONB

GB News, Hertfordshire Edition

Some of the planning bar was all-caps aplenty on LinkedIn this week in relation to a couple of Hertfordshire green belt appeal decisions by the Secretary of State:

Before I discuss these (together with in fact a third one – take a bow David Hardy and team), I thought I would share with you some statistics. I have been looking at DLUHC’s list of called in planning application decisions and recovered appeal decisions to get a feel for the recent pass/fail rate and the extent to which the Secretary of State is departing from inspectors’ recommendations (a feature of two out of three of the recent decisions).

In relation to call in decisions over the last year, the Secretary of State has approved 5 out of 8. In 4 of them (half!) he has reached a different decision to that which the inspector recommended – two approvals against recommendation, two refusals against recommendation (although one of the latter – M&S Oxford Street – is of course back for redetermination).

In relation to recovered appeals, there have been 17 decisions – 10 allowed and 7 dismissed. In 5 of them he has reached a different conclusion to that which the inspector recommended – two allowed against recommendation, three dismissed against recommendation.

I’m not sure what you take from this back of the envelope calculation other than how unpredictable the process is. I feel I need to point again to my 9 February 2024 blog post, The Weighting Game .

Turning to these Hertfordshire green belt decisions…

Tring

This was an appeal against Dacorum Borough Council’s refusal of an application for planning permission for up to 1,400 dwellings (including up to 140 falling within use class C2), a new local centre, sports/community hub, primary school, secondary school and public open space on land bound by Bulbourne Road and Station Road, bisected by Marshcroft Lane, Tring, Hertfordshire. The site is in the green belt and surrounded on three sides by the Chiltern area of outstanding natural beauty. By his decision letter dated 15 March 2024 he disagreed with his inspector’s recommendations and refused planning permission.

The Secretary of State found that Dacorum has a significant housing land supply deficit – its supply stands at just 2.06 years. The inspector gave moderate weight to the provision of recreational and sporting facilities, whereas the Secretary of State gave this limited weight but, other than that, his findings did not materially depart from those of the inspector. However, it all came down to that tricky issue of weight:

“In line with paragraph 148 (now 153) of the Framework, the Secretary of State has considered whether the harm to the Green Belt by reason of inappropriateness, and any other harms resulting from the development is clearly outweighed by other considerations. Overall, he considers that the other considerations in this case do not clearly outweigh the harm to the Green Belt and the other identified harms relating to impact on character and appearance, setting of the AONB, harm to designated and non- designated heritage assets and loss of agricultural land. He therefore considers that [very special circumstances] do not exist to justify this development in the Green Belt.”

Chris’ LinkedIn post on the decision is here .

Chiswell Green Lane, St Albans

This was the Secretary of State’s decision letter dated 22 March 2024 in relation to two appeals against refusal by St Albans City and District Council of applications for up to 391 new dwellings, the provision of land for a new school and associated development on land south of Chiswell Green Lane and  for up to 330 discounted affordable homes for key workers, including military personnel, the creation of open space and associated development on land north of Chiswell Green Lane, St. Albans

St Albans’ housing land supply stands at only 1.7 years and its housing delivery test figure stands at 55% (both figures worse at the time of the decision than at the inquiry). Although St Albans’ emerging local plan is still only at regulation 18 stage, the Secretary of State agreed with the inspector that “the Green Belt Review is a material consideration relevant in considering Green Belt matters in the district, and that the relative suitability of strategic sub-area S8 (which both appeal sites fall within), as defined by the Green Belt Review, is an important consideration.” and that the land to be secured for a new school via appeal A should attract significant weight.

In terms of housing:

“The Secretary of State agrees with the Inspector that there is a very substantial need for housing in the district which is persistently going unmet, that the Local Plan housing requirement is hopelessly out of date, and that, using the standard method, the Council can demonstrate just a two-year housing land supply at best. He also notes that the latest HDT has been failed by some margin.  Therefore, the presumption in favour of sustainable development is triggered, in accordance with footnote 8 to paragraph 11(d) of the Framework.

For the reasons given in IR586-591, the Secretary of State agrees with the Inspector that in the context of such a great housing need, very substantial weight should be attached to the proposed housing.”

Compare and contrast with that Tring decision – Dacorum 2.06 years versus St Albans 1.7 years – hmmm, not much in it is there?

“The Secretary of State has considered whether the harm to the Green Belt by reason of inappropriateness, and the other harms he has identified, are clearly outweighed by other considerations. He considers that they are, and therefore very special circumstances exist to justify permitting the development. As such, the proposed development accords with Policy S1 of the St Stephen Parish Neighbourhood Plan 2019-2036 and Policy 1 of the St Albans District Local Plan Review 1994, and national planning policy on Green Belt.”

Charlie’s LinkedIn post is here .

Great Wymondley

This was a decision dated 11 March 2024 taken on behalf of the Secretary of State in relation to an application, which he had called in, for a proposed solar array with associated battery storage containers and ancillary development including means of access and grid connection cable on land at Graveley Lane and to the east of Great Wymondley, Hertfordshire. The inspector recommended that the application be refused but the Secretary of State disagreed and granted planning permission.

The Secretary of State placed significant weight on the contribution that the scheme would have to renewable energy targets, including “the generation of sufficient electricity to meet the requirements of about 31% of the homes in” North Hertfordshire. He disagreed with the inspector’s conclusion that the development would cause serious harm to the setting of the grade 1 listed Wymondley Priory and a nearby grade II* listed nearby tithe barn and with the inspector’s concerns as to the inadequacies of the site selection process carried out.

In summary (although as always do read the full letter):

“Weighing against the proposal is harm to the Green Belt which carries substantial weight, harm to heritage which carries great weight and uncertainty about mitigation for displaced Skylarks which carries moderate weight. Further to this, harm is found to the impact on views from Graveley Lane and the Hertfordshire Way which carries considerable weight, to the landscape of the site and its immediate surroundings which carries significant weight and to the effect on landscape character area which carries moderate weight.

The Secretary of State has considered paragraph 208 (formerly paragraph 202) of the Framework. He considers that the public benefits of the proposal do outweigh the less than substantial harm to the designated heritage assets and therefore, in his judgement, the Framework’s heritage balance is favourable to the proposal.

The Secretary of State has considered paragraph 153 (formerly paragraph 148) of the Framework. He considers that the potential harm to the Green Belt by reason of inappropriateness, and any other harm resulting from the proposal, is clearly outweighed by other considerations, and therefore considers that VSCs exist.”

It is so hard to predict outcomes or to establish reliable patterns: three decisions – one allowed in accordance with the inspector’s recommendations, one refused against the inspector’s recommendations and one allowed against the inspector’s recommendations. Rather dispiriting for any inspector, one imagines.

In return for reading this free blog post….

Chris Young is doing a seriously great thing again this year, running the London marathon dressed as a house, for Shelter. Sponsor this qood cause here .

Town Legal partners, staff and their pressganged families are all running, walking, roller-skating etc at least 5km this weekend in aid of XLP, a charity which does life-changing work for disadvantaged young people. I’m checking internally as to whether tapping out 5k words counts but if not I may go walking tomorrow, either in the direction of the Tring appeal site or in the direction of the St Albans one. Or maybe I’ll just head in the direction of my favourite hefty Belties on Blackbird’s Moor. Please help XLP and give me a bit of impetus to keep typing away by sponsoring this good cause here .

Simon Ricketts, 23 March 2024

Personal views et cetera

The Belted Galloways on Boxmoor, Hertfordshire, pic courtesy of the Boxmoor Trust

Mind Blowing Decisions

“Mind blowing decisions causes head on collisions

Mind blowing decisions causes head on collisions”

(Heatwave, 1978)

Decisions, decisions.

The Secretary of State’s 6 April 2023 decision to refuse planning permission for Berkeley Homes’ proposed development of 165 new dwellings in Cranbrook, Kent (a decision in fact taken by planning minister Rachel Mclean on behalf of the Secretary of State) = a head on collision for sure.

Tunbridge Wells Borough Council had resolved to approve the scheme but Natural England, concerned as to the prospect of harm to the High Weald Area of Outstanding Natural Beauty, secured its call in by the Secretary of State.

The council has slightly less than five years’ housing land supply. The scheme included 40% affordable housing: 50/50 rented and shared ownership.

To cut a long story short (read the decision letter and inspector’s report), the Secretary of State disagreed with the inspector’s recommendation that planning permission be granted.

On the main issues:

⁃ AONB: “Overall the Secretary of State agrees with the Inspector at IR823 that there would be some harm to the HWAONB, which would be limited, and that the harm to the landscape and scenic beauty of the HWAONB attracts great weight.”

Tucked within his conclusions on AONB this turns out to be a crucial passage in the decision:

“The Secretary of State recognises that both the HWAONB Management Plan and the High Weald Housing Design Guide emphasise that housing development in the HWAONB should be landscape-led. Whilst he agrees with the Inspector that the proposed development would deliver landscape enhancements (IR826), he does not find the proposal to be of a high standard which has evolved through thoughtful regard to its context (IR723). Overall, he does not find that the scheme is sensitively designed having regard to its setting. He finds that the design of the proposal does not reflect the expectations of the High Weald Housing Design Guide, being of a generic suburban nature which does not reproduce the constituent elements of local settlements. He also considers that the layout of the scheme does not respond to its AONB setting. Rather than being a benefit of the scheme, as suggested by the Inspector, the Secretary of State considers that the design of the scheme is a neutral factor in the context of paragraphs 176 and 177 of the Framework and the planning balance.”

Not “sensitively designed”? “… of a generic suburban nature”? It’s worth looking at the scheme drawings, design and access statement etc on the council’s planning portal. I would disagree. More fundamentally, there is something very odd about a minister (and civil servants) arriving at a conclusion like this, in the face of the elected local planning authority and hands on consideration, site visits and so on conducted at that stage and in the face of the conclusions reached by an inspector after many inquiry days and a site visit. And in the face of Government assertions that it still wants to see 300,000 homes built annually. Frankly why bother with all that if this is the outcome?

⁃ Air quality: “…there would be very limited harm to air quality, and he affords this very limited weight in the planning balance.”

⁃ Site allocation strategy: Whilst he agreed with the inspector that the local plan policies should be treated as out of date because of the lack of five years’ housing supply, because the shortfall was slight he disagreed with the Inspector’s assessment that both the policies and the conflict with them carry limited weight.

⁃ Historic environment: “For the reasons given at IR767-774 the Secretary of State agrees with the Inspector at IR773 that the proposed development would not harm any significant historic landscape resource and all of the individual features which could be of potential interest would be retained.”

⁃ Sustainable transport: “For the reasons given at IR790-793 the Secretary of State agrees with the Inspector that the development would promote sustainable transport in the terms of the Framework and accord with relevant development plan policy in that regard (IR794).”

Turning to the benefits of the scheme:

⁃ Housing delivery: “For the reasons given at IR763-764 the Secretary of State agrees with the Inspector that there is a clear need for both market and affordable housing in the Borough and that the proposed development would make a significant contribution to the delivery of both (IR764).”

⁃ Biodiversity: “…the proposed development would secure significant BNG such that it would accord with the Framework, including paras 174, 179 and 180 and development plan policy, as well as the eLP, in this regard (IR747).

⁃ Other benefits: “The Secretary of State agrees for the reasons given at IR774, IR720 and IR811 that the proposed reinstatement of hedgerows along historic boundaries and of the shaw in the southern fields would be beneficial to the time-depth character of the HWAONB (IR774). Furthermore, the proposed re-creation of Tanner’s Lane would also be beneficial in heritage terms as it would reinstate a historic feature in the local landscape (IR774). The Secretary of State agrees for the reasons given at IR720 and IR811 that the new woodland planting and management of existing woodland would be to the benefit of the environment and landscape. He further agrees for the reasons given at IR786 that the proposed highway works may result in improving highway safety. In addition, for the reasons given at IR811 the additional footpaths and substantial new publicly accessible amenity space would enhance recreational opportunities.”

Overall conclusion on benefits:

“The Secretary of State has had regard to the Inspector’s view at IR824 as to weight attaching to the benefits of the scheme, and notwithstanding his conclusion at paragraph 36 below that there is not a ‘very compelling case’ for the need for development of this type and in Cranbrook, overall he agrees that the combined weight of the benefits is substantial. However, he does not agree with the Inspector’s characterisation at IR826 that it constitutes ‘a package of exceptional benefits’.”

So “the combined weight of the benefits is substantial”….

Application of policies in the NPPF relating to development in the AONB:

⁃ Great weight should be given to conserving and enhancing landscape and scenic beauty in AONBs – conclusion that limited harm but that harm should be given great weight.

⁃ Planning permission for major development in the AONB should be refused unless there are exceptional circumstances justifying the development, and where it can be demonstrated that the development is in the public interest – no exceptional circumstances, not in the public interest.

Overall conclusions:

“Weighing in favour of the development are the need for and delivery of housing, the Biodiversity Net Gain, enhanced recreation opportunities, improvements in highway safety, heritage benefits to the historic landscape and landscape benefits by way of woodland planting and management, which collectively carry substantial weight.

Weighing against the proposal is the harm to the landscape and the scenic beauty of the HWAONB which attracts great weight. There is further harm by way of conflict with the spatial strategy which attracts moderate weight, harm to air quality which is afforded very limited weight and harm to the plan making process through prematurity which is afforded very limited weight.

The Secretary of State has concluded for the reasons given above that exceptional circumstances do not exist to justify the proposed development in the AONB and that the development would not be in the public interest. Therefore, paragraph 177 of the Framework provides a clear reason for refusing the development proposed and as such under paragraph 11(d)(i) of the Framework the presumption in favour of sustainable development is no longer engaged.

Overall, the Secretary of State’s conclusion on section 38(6) of the Planning and Compulsory Purchase Act 2004 is that the conflict with the development plan and the material considerations in this case indicate that permission should be refused.”

The decision appears to have been the final straw for housebuilders, already riled by the overtly anti-housebuilding theme of the proposed amendments to the NPPF (final version soon to emerge). See for example Builders lambast Michael Gove after he blocks plan for ‘generic’ homes in Kent (The Times, 15 April 2023 – behind paywall).

There were no costs applications in this decision but I do note that costs applications and awards appear to becoming more frequent. Often of course these are in favour of appellants where the case against grant of planning permission simply has not been made out by the relevant local planning authority (particularly where the decision to refuse was against officers’ recommendations) – e.g for one example amongst many this decision letter dated 20 April 2023, plus accompanying costs decision letter in relation to a student housing scheme in Bath.

But it’s not just appellants who achieve costs awards. Did people see this recent costs decision letter where Mid Suffolk District Council achieved a full award of costs against the appellant, arising from flooding and access issues which led the inspector to conclude that the appeal had no reasonable prospect of success? Proceed with caution.

By way of reminder (ok gratuitous plug), if you sign up to our free Town Library appeal decisions service you get a list each week of the most recent major planning appeal decisions (namely all those arising from inquiries as opposed to hearings or the written representations process) with links to the decision letters themselves.

Oh finally, another mind blowing decision: the Government continuing to press on with the proposed Infrastructure Levy. Truly a terrible proposal. You may have logged on to our recent clubhouse discussion (hopefully soon to emerge as a 50 Shades of Planning podcast), ahead of the 9 June deadline for responses to the Government’s current technical consultation. If there is anyone out there who can articulate why IL would be an improvement over the current system I would love to hear from you.

Simon Ricketts, 22 April 2023

Personal views, et cetera

Beautiful Day

I threw those curtains wide, drinking in the morning emails and there it was: MHCLG press release 30 January 2021, All new developments must meet local standards of beauty, quality and design under new rules.

Consultation is now running until 27 March 2021 on:

National Planning Policy Framework and National Model Design Code: consultation proposals

National Planning Policy Framework Draft text for consultation

Draft national design code

Guidance notes on design codes

The proposals seek to give effect to the Building Better Building Beautiful Commission’s recommendations that I summarised in my 1 February 2020 blog post Beauty Duty.

“The National Model Design Code is intended to form part of the government’s planning practice guidance. It is not a statement of national policy. However, once finalised, the government recommends that the advice on how to prepare design codes and guides is followed.”

I will leave others to comment on the draft national design code and the proposed “beauty” related changes to the NPPF (the consultation proposals identify the changes and the draft revised text is helpfully marked-up to show all the textual changes).

However, you should note that the draft NPPF changes go wider:

“We have also taken this opportunity to make a number of environment-related changes, including amendments on flood risk and climate change. The amendments also include a small number of very minor changes arising from legal cases, primarily to clarify the policy. A few minor factual changes have also been made to remove out-of-date text (for example, the early thresholds for the Housing Delivery Test), to reflect a recent change made by Written Ministerial Statement about retaining and explaining statues, and an update on the use of Article 4 directions.”

As summarised in the consultation proposal, the draft revised text:

• Implements policy changes in response to the Building Better Building Beautiful Commission recommendations

• Makes a number of changes to strengthen environmental policies – including those arising from our review of flood risk with Defra

• Includes minor changes to clarify policy in order to address legal issues

• Includes changes to remove or amend out of date material

• Includes an update to reflect a recent change made in a Written Ministerial Statement about retaining and explaining statues.

• Clarification on the use of Article 4 directions

Some points that immediately leapt out (this is not a comprehensive list):

Overarching objectives of the planning system

Paragraph 8 of the NPPF has been amended to refer to refer to “beautiful, well-designed and safe places” (previously “a well-designed and safe built environment”).

The presumption in favour of sustainable development

Paragraph 11 (a) has been amended to read:

“all plans should promote a sustainable pattern of development that seeks to: meet the development needs of their area; align growth and infrastructure; improve the environment; mitigate climate change (including by making effective use of land in urban areas) and adapt to its effects”.

(The previous wording was “plans should positively seek opportunities to meet the development needs of their area, and be sufficiently flexible to adapt to rapid change”).

Article 4 directions

“We also propose clarifying our policy that Article 4 directions should be restricted to the smallest geographical area possible. Together these amendments would encourage the appropriate and proportionate use of Article 4 directions.”

This is really interesting, particularly in the context of the proposed class E to C3 permitted development right. The proposed wording is pretty tight:

“The use of Article 4 directions to remove national permitted development rights should

• where they relate to change of use to residential, be limited to situations where this is essential to avoid wholly unacceptable adverse impacts

• [or as an alternative to the above – where they relate to change of use to residential, be limited to situations where this is necessary in order to protect an interest of national significance]

• where they do not relate to change of use to residential, be limited to situations where this is necessary to protect local amenity or the well-being of the area (this could include the use of Article 4 directions to require planning permission for the demolition of local facilities)

• in all cases apply to the smallest geographical area possible.”

Larger scale residential proposals

There is an amendment to paragraph 73 to require that these should include “a genuine choice of transport modes”.

Isolated homes in the countryside

The design should now be “outstanding”. The “or innovative” is gone.

Affordable home ownership

“Paragraph 64 has been amended to clarify that, where major development involving the provision of housing is proposed, planning policies and decisions should expect at least 10% of the total number of homes to be available for affordable home ownership. This is to address confusion as to whether the 10% requirement applies to all units or the affordable housing contribution.”

Neighbourhood plan allocations

“Paragraph 69 has been amended to remove any suggestion that neighbourhood plans can only allocate small or medium sites. This was not the policy intention, so the wording has therefore been amended to clarify that neighbourhood planning groups should also give particular consideration to the opportunities for allocating small and medium-sized sites (of a size consistent with paragraph 68a) suitable for housing in their area.”

Trees

A new paragraph 130:

“Trees make an important contribution to the character and quality of urban environments, and can also help mitigate and adapt to climate change. Planning policies and decisions should ensure that new streets are tree-lined [Unless, in specific cases, there are clear, justifiable and compelling reasons why this would be inappropriate], that opportunities are taken to incorporate trees elsewhere in developments (such as community orchards), that appropriate measures are in place to secure the long- term maintenance of newly-planted trees, and that existing trees are retained wherever possible. Applicants and local planning authorities should work with local highways officers and tree officers to ensure that the right trees are planted in the right places, and solutions are found that are compatible with highways standards and the needs of different users.”

The “well-designed” test

Paragraph 133:

“133. Development that is not well designed should be refused, especially where it fails to reflect local design policies and government guidance on design, taking into account any local design guidance and supplementary planning documents which use visual tools such as design guides and codes. Conversely, significant weight should be given to:

a) development which reflects local design policies and government guidance on design, taking into account any local design guidance and supplementary planning documents which use visual tools such as design guides and codes; and/or

b) outstanding or innovative designs which promote high levels of sustainability,, or help raise the standard of design more generally in an area, so long as they fit in with the overall form and layout of their surroundings.”

Development affecting the setting of national parks and AONBs

“New paragraph 174 has been amended in response to the Glover Review of protected landscapes, to clarify that the scale and extent of development within the settings of National Parks and Areas of Outstanding Natural Beauty should be sensitively located and designed so as to avoid adverse impacts on the designated landscapes.”

Historic statues, plaques and memorials

(which was going to be the subject of this week’s blog post until the curtains/drinking in the emails moment)

“New paragraph 196 has been added to clarify that authorities should have regard to the need to retain historic statues, plaques or memorials, with a focus on explaining their historic and social context rather than removal, where appropriate.”

This of course supplements Robert Jenrick’s statement to the House of Commons (18 January 2021) and MHCLG’s 17 January 2021 press statement, New legal protection for England’s heritage.

As a draft for consultation in my view the consultation material so far has only limited weight for decision makers and, as is usually and appropriately the case, the final documents may be subject to change. However, there is much for us all to get to grips with – and comments on the national design code are for another day.

Simon Ricketts, 30 January 2021

Personal views, et cetera

Avoiding Dover-type reasons JRs

Planning committees that resolve to approve planning applications against officers’ recommendations need to be careful not to fall foul of a JR if their reasoning is inadequate. The risks are particularly high in EIA cases and where there are other sensitive elements. Although Laws LJ described it as an “unusual case”, R (CPRE Kent) v Dover District Council & China Gateway International Limited  (Court of Appeal, 14 September 2016) should be a watchword for caution. 
The Court of Appeal quashed an LPA’s decision, taken contrary to officers’ advice, to approve a scheme for major development in the Kent Downs AONB. It was said to be uncontentious between the parties that “the scale of the proposed development is unprecedented in an AONB”. Officers had recommended that the scheme would only be acceptable with changes to its layout, which the applicant claimed would make the scheme unviable. The officers’ report analysed the issues in detail and set out out the policy tests in paragraphs 115 and 116 of the NPPF:
“115. Great weight should be given to conserving landscape and scenic beauty in… Areas of Outstanding Natural Beauty, which have the highest status of protection in relation to landscape and scenic beauty…

116. Planning permission should be refused for major developments in these designated areas except in exceptional circumstances and where it can be demonstrated that they are in the public interest. Consideration of such applications should include an assessment of:

The need for the development, including in terms of any national considerations, and the impact of permitting it, or refusing it, upon the local economy;

The cost of, and scope for, developing elsewhere outside the designated area, or meeting the need for it in some other way;

Any detrimental effect on the environment, the landscape and recreational opportunities and the extent to which that could be moderated.”

The members’ reasoning for disagreeing with their officers’ recommendation was briefly summarised in the committee minutes, referring to the benefits flowing from the development, the belief that harm could be minimised with effective screening and concluding that the advantages outweighed the harmful impact on the AONB. 

The Court of Appeal summarised the relevant law on the standard of reasoning required of a decision maker, setting out the classic passage from South Bucks v Porter (No 2) (2004):

“36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not 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. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”

The court referred to the recent judgment by Lang J in R (Hawksworth Securities plc) v Peterborough City Council  (Lang J, 26 July 2016) where she had taken a light-touch approach to scrutiny of LPA decisions partly on the perhaps weak basis that it would be “unduly onerous to impose a duty to give detailed reasons…given the volume of applications to be processed”. The court didn’t suggest that her reasoning was “wrong in principle” but that “Lang J’s approach needs to be treated with some care. Interested parties (and the public) are just as entitled to know why the decision is as it is when it is made by the authority as when it is made by the Secretary of State”. 

The court drew attention to features of the Dover case which pointed away from her approach:
– the nature of the development proposed as against the AONB policy tests

– the fact that the committee was departing from the officers’ recommendation, meaning that it should, “if but briefly”, engage with the officers’ reasoning

– the fact that here there was a statutory duty to give reasons by virtue of Regulation 24(1) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011  .
On the facts it was held that the reasoning was not adequate to show whether the Committee had accepted the officers’ assessment of the harm that would be caused, whether the Committee had gone wrong in carrying out a balancing exercise of harm versus benefits (which would not be sufficient to meet the policy tests) or how any screening would make a substantial difference. End of permission. 
A few concluding comments: 
1. An applicant in the happy position of having persuaded a committee to approve an application in the face of an officers’ recommendation to refuse should make sure that the committee’s reasoning is sufficient to address the main elements of the officers’ recommendations. Often this will not necessarily be the case. For example, at its most basic, varying approaches are taken by authorities as to the brevity of their minutes. If in doubt, err on the side of a full record of what was said. It is odd that many authorities still do not record debates digitally or make them available for subsequent scrutiny as a matter of course.

2. No reference was made in the judgment to the statutory duty on decision makers in section 85 of the Countryside and Rights of Way Act 2000, in exercising or performing any functions in relation to, or so as to affect, land in an AONB, to “have regard to the purpose of conserving and enhancing the natural beauty of the area of outstanding natural beauty”. It is a very broad test and I assume the court and the parties took the position that it was automatically met if the NPPF policy tests in paragraphs 115 and 116 were met. 
3. Regulation 24(1) of the EIA Regulations 2011 is one of many elephant traps in the planning system: 

“Where an EIA application is determined by a local planning authority, the authority shall—

(a)in writing, inform the Secretary of State of the decision;

(b)inform the public of the decision, by local advertisement, or by such other means as are reasonable in the circumstances; and

(c)make available for public inspection at the place where the appropriate register (or relevant section of that register) is kept a statement containing—

(i)the content of the decision and any conditions attached to it;

(ii)the main reasons and considerations on which the decision is based including, if relevant, information about the participation of the public;

(iii)a description, where necessary, of the main measures to avoid, reduce and, if possible, offset the major adverse effects of the development; and

(iv)information regarding the right to challenge the validity of the decision and the procedures for doing so.”

These requirements are easy to overlook. 

4. Laws LJ concluded his judgment by remarking that the “scale of the proposed development is unprecedented in an AONB”. If I can be permitted a partizan remark, he would do well to see the implications of HS2 for the Chilterns AONB, in relation to which I would argue that the Commons Select Committee’s 22 February 2016 conclusions  were inadequate…
Simon Ricketts, 16.9.16

Personal views, et cetera