The High Court recently offered a useful starter pack in both planning and administrative law.
Bob Dylan in his 1965 Blonde on Blonde album drew a philosophical distinction between needs and wants. For in Memphis Blues Again, a lover told him that while another woman might know what he needs, it was she who knew what he wants.
The High Court (Haddon-Cave J) recently explored similar linguistic (if less romantic) territory when considering ‘need’ in the context of planning control. At the same time, the court offered a useful starter pack in both planning and administrative law.
The case in question (which engaged ‘the fundamentals of planning law’) was R (Cherkley Campaign Ltd) v Mole Valley District Council  EWHC 2582 (Admin), judgment in which was given on 22 August. It concerned a proposed exclusive private golf and hotel development ‘in the scenic setting of the Surrey Hills’, subject to numerous planning and environmental designations and policies. These included (among other things) location within an ‘area of outstanding natural beauty’ and the ‘metropolitan green belt’ and being a ‘site of special scientific interest’.
Paragraph 12.71 of the Mole Valley Local Plan provided (among other things) that: ‘In considering proposals for new courses, the protection of the district’s green belt and countryside will be of paramount importance… Applicants proposing new courses will be required to demonstrate that there is a need for further facilities’.
The claimant campaigners were challenging a decision by Mole Valley District Council to grant planning permission for the proposed development.
‘Doublethink’, according to George Orwell’s 1984, means the ‘mental capacity to accept as equally valid two entirely contrary opinions or beliefs’. Such capacity can sometimes be necessary for senior local government officers and was apparently required in the instant planning decision. For although the planning officers had recommended refusal of the application (in a report which the judge found to be ‘impressive and lucid’), elected members nevertheless subsequently chose to grant permission for reasons drafted by the same planning officers who had previously recommended that planning permission be refused. As Alice once remarked: ‘Curiouser and curiouser.’
Reasons for the initial officer refusal recommendation included serious detriment to visual amenity and lack of justification as to why the proposed golf course needed to be located in protected landscape. However, reasons for the subsequent planning consent included ‘opportunities to meet a need for recreation facilities in the countryside’.
Among the several grounds of challenge by the claimant was failure to demonstrate ‘need’ for further golf facilities. As Haddon-Cave J indicated, much of the legal argument revolved around this issue in the relevant planning policy context.
What is planning law for?
The court indicated that by ‘its origins, philosophy and principles, planning law is concerned with the regulation of the private use of land in the interests of the community
as a whole’. His lordship referred to the observations of Sir Malcolm Grant in Urban Planning Law (1982 edition, p6) that planning law prescribes the procedures – or sets the battle lines – for the resolution of conflict over land use ‘between the interest of private property and the prevailing “public” or “community” interests’.
The judge ‘gratefully’ adopted nine principles of planning law outlined by Lindblom J in Cala Homes (South) Limited v Secretary of State for Communities and Local Government  EWHC 97. These included that the determination of a planning application must be made in accordance with the development plan unless material considerations indicate otherwise. It is for the decision-maker to assess the relative weight to be given to all material considerations, including the policies of the development plan. The law distinguishes between materiality and weight. However, although materiality ‘is a question of law for the court; weight is for the decision-maker in the exercise of its planning judgment’.
For the purposes of judicial review the threshold of irrationality is high. As Lord Bingham observed in R v Secretary of State for the Home Department ex parte Hindley  QB 751: ‘To justify intervention by the court, the decision under challenge must fall outside the bounds of any decision open to a reasonable decision-maker.’ However, the court noted that ‘where fact-finding and planning judgments are involved, Wednesbury unreasonableness is a “difficult obstacle”; and the courts should be astute to ensure that perversity challenges are not used “as a cloak for what is, in truth, a rerun of arguments on the planning merits” (per Sullivan J in Ex parte Newsmith Stainless Ltd  EWHC Admin 74)’.
As to reasons, per Ouseley J in R (Midcounties Co-operative Ltd) v Wyre Forest District Council  EWHC 964, the ‘fundamental test is “whether an interested person could see why planning permission is granted and what conclusion was reached on the principal issues”’.
It is for the court to determine the meaning of words in a planning policy. But if a ‘decision-maker attaches a meaning to the words they are not properly capable of bearing, then it will have made an error of law, and it will have failed properly to understand the policy’ (per Brooke LJ in R v Derbyshire County Council, Ex parte Woods  JPL 958).
As to ‘need’, the ‘golden thread of public interest is woven through the lexicon of planning law’. For, as Haddon-Cave J indicated: ‘Pure private “demand” is antithetical to public “need”, particularly very exclusive private demand.’ And once ‘this is understood, the case answers itself’. For the ‘more exclusive the development, the less public need is demonstrated’.
In the court’s view: ‘The word “need” [in the present context]… means “required” in the interests of the public and the community as a whole, ie “necessary” in the public interest sense. “Need” does not simply mean “demand” or “desire” by private interests. Nor is mere proof of “viability” of such demand enough.’
Consequently, ‘if the council majority had understood the meaning of the word “need” in its proper “public interest” sense, they would have concluded that Surrey clearly did not “need” another golf course. The evidence was and is overwhelming that Surrey already has, by any standards, more than enough golf courses.’ For there ‘are said to be no fewer than 60 golf courses within a 30-minute drive of Cherkley’.
The council majority consequently ‘failed properly to interpret, or understand, the true meaning of the word “need”’ and this was ‘a demonstrable error of law’.
In all the circumstances, the court quashed the council’s decision since it was ‘legally flawed, contrary to planning policy, failed to take account of material considerations, irrational and the reasons given for it were inadequate’.
Although officer advice may sometimes find itself swimming against the political tide, councillors should reflect carefully before departing from it. For primrose paths followed against advice can often lead to legal perdition.
Dr Nicholas Dobson is a consultant at Freeth Cartwright