Case No: C1/2017/1179
Neutral Citation Number: [2018] EWCA Civ 1519
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
PLANNING COURT
H.H.J. BELCHER (sitting as a deputy judge of the High Court)
[2017] EWHC 665 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 29 June 2018
Before:

Lord Justice Lindblom
and
Lord Justice Peter Jackson

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Between:

	R. (on the application of Tate)
	Respondent	
	- and -		
	
 Northumberland County Council	
Appellant	
	
- and -		
	
Susan Leffers-Smith	
Interested Party	

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Mr Juan Lopez (instructed by Northumberland County Council Legal Services) 
for the Appellant
Ms Annabel Graham Paul (instructed by Harrison Grant Solicitors) for the Respondent
The Interested Party did not appear and was not represented.

Hearing date: 9 May 2018

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Judgment
Lord Justice Lindblom: 

Introduction

1.	Did a local planning authority, when granting planning permission for the construction of a dwelling-house in a village in the Green Belt, err in law in failing to provide reasons for its conclusion that the development would be “limited infilling”, contrary to the view of an inspector in a previous appeal decision? That is the main question in this appeal. It does not raise any novel issue of law.

2.	With permission granted by Sales L.J. on 3 October 2017, the appellant, Northumberland County Council, appeals against the order of H.H.J. Belcher, sitting as a deputy judge of the High Court, dated 4 April 2017, by which she allowed the claim for judicial review brought by the respondent, Dr David Tate, challenging its grant of outline planning permission, dated 6 July 2016, for the erection of a two-storey dwelling-house on land west of “Bramblings”, in the village of Tranwell Woods, near Morpeth. Tranwell Woods is a village to the south-west of Morpeth, in the Northumberland Green Belt. Dr Tate, who lives in “Westwood Cottage” – a dwelling to the west of “Bramblings” – was an objector to the proposal. The applicant for planning permission was the interested party, Ms Susan Leffers-Smith. 

3.	In a decision letter dated 9 January 2009 an inspector had dismissed an appeal against the refusal by Castle Morpeth Borough Council of planning permission for similar development on the same site, finding that it was not “infill” development.

4.	Two previous grants of outline planning permission for this proposal had been successfully challenged by Dr Tate. We are concerned in this appeal with the third grant of planning permission, which followed the resolution of the county council’s Strategic Planning Committee to approve the proposal at its meeting on 5 July 2016, in accordance with the recommendation of its Senior Planning Officer in his report. The officer had advised the committee that the proposal was not for “inappropriate” development in the Green Belt, because it fell under the exception for “limited infilling in villages” in paragraph 89 of the National Planning Policy Framework (“the NPPF”).

The issue in the appeal

5.	Dr Tate’s challenge to the county council’s decision included grounds contending that the committee had misinterpreted the concepts of “village” and “limited infilling” in paragraph 89 of the NPPF, that it was inconsistent with the inspector’s decision of 9 January 2009, and that the reasons for the grant of planning permission, apparent in the planning officer’s report, were inadequate. The judge accepted that, in the circumstances, reasons should have been given for the county council’s conclusion that the proposal was for “limited infilling”.

6.	The county council sought permission to appeal on three grounds. Permission was granted by Sales L.J. only on the first, which states that the judge “erred in law” in “[finding] that there was a need for express reasons to be given for the specific decision/finding of the Appellant’s Planning Committee that the Development amounted to “limited infilling” [in a village] for the purposes of paragraph 89 of the NPPF, and (even if there was such a need), separately finding that the reasons given were inadequate in law”, and that “[the judge’s] approach and finding discloses error and is irrational …”. The sole issue for us, therefore, is whether the county council erred in law by failing to provide reasons for its conclusion that the construction of a dwelling on this site would constitute “limited infilling”, given the conclusion of the inspector in the 2009 appeal that such development was not “infill” development.

The 2009 appeal decision

7.	The site has a surprisingly long planning history. Applications for planning permission for the erection of a dwelling-house were refused in 1989 and, twice, in 1999. An appeal against one of the refusals of planning permission in 1999 was dismissed by an inspector in 2000. Another application was refused in 2008, and that refusal was the subject of the January 2009 appeal decision. A subsequent application was refused in 2014. In November 2014 the county council granted planning permission for the proposal with which we are concerned. That planning permission was challenged by Dr Tate in a claim for judicial review and was quashed in March 2015 – because the county council had failed properly to apply relevant policy for Green Belt. On redetermination, planning permission was again granted, in December 2015. That planning permission was also challenged by Dr Tate and was quashed, by consent, in April 2016 – because the county council had failed properly to apply Policy H7 of the Castle Morpeth Local Plan. It is common ground in these proceedings that the errors in those two decisions were not repeated by the county council in this, its third grant of planning permission for the proposal.

8.	The development proposed in 2008 was described by the inspector in his decision letter as “one new dwelling and garage”. He described Tranwell Woods as “within an area of open countryside …”, adding that “[its] wooded landscape includes dwellings at a low density set in extensive grounds …” (paragraph 6 of the decision letter). He rejected the contention that the appeal site was part of the garden of “Westwood Cottage” and therefore to be regarded as “previously-developed land” as defined in Annex B to Planning Policy Statement 3 (“PPS3”) (paragraph 9). He then turned to the suggestion that the proposal was for “infill development”. On this question he said (in paragraph 10):  

 “10. The appellant considers the site to be an acceptable form of infill development. No specific definition of acceptable “infill” development is included in the LP documentation before me. None appears in PPS3. The site is enclosed on three sides by dwellings with Belt Plantation to the south, and with an extended shared access from the C151. The development intended does not represent a gap in an otherwise [developed] frontage on the C151 through TW – this, in my view, [is] one reasonable test of infill development. To allow the Appeal would add an intrusive element to this sensitive area of countryside. While the dwelling would have limited visibility from public viewpoints, that cannot establish a convincing justification for the proposal. It would be able to be repeated too often, to the detriment of the countryside. Similarly, to grant planning permission would make it more difficult for the Council to resist similar proposals, undermining the clear intent of local planning policy. …”. 

9.	The inspector went on to conclude that “the proposal would adversely affect the character and appearance of the open countryside and Tranwell Woods in conflict with the Development Plan and national planning guidance” (paragraph 15), and, having considered all other material considerations, that the appeal should be dismissed (paragraph 21).

10.	The Northumberland Green Belt around Morpeth was subsequently extended to include Tranwell Woods.

Paragraph 89 of the NPPF

11.	In a section of the NPPF headed “Protecting Green Belt land”, paragraphs 86 and 87 state:
   
    “86. If it is necessary to prevent development in a village primarily because of the important contribution which the open character of the village makes to the openness of the Green Belt, the village should be included in the Green Belt. …

87. As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.”

12.	Paragraph 89 states:

 “89. A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Exceptions to this are:
	      
… 
•	limited infilling in villages, and limited affordable housing for local community needs under policies set out in the Local Plan …
… .”

Dr Tate’s objection

13.	A draft of the planning officer’s report for the committee meeting on 5 July 2016 was made available to interested parties in early June 2016. Dr Tate’s objection to the proposal at this stage, in a letter dated 5 June 2016, included this:

“Infill in a village
The Planning [Officer’s] only justification for recommending approval of this application is that it would represent limited infill within a village.
The site is 2.5 acres in size[,] does not abound a public road and is situated within the open countryside in an area of housing that has no settlement boundary. Which of these factors does the Planning Officer feel would stand up in front of a High Court Judge?

By their own documentation submitted as extra evidence the land owner is only allowing the applicant to own 1/5 of the site.
The application site is the existing 0.5 acre clearing in the developed part of Gubeon West. It does not include the 2 acres of external woodland surrounding it, and [is] not owned by the applicant, who therefore has no right of control over it.

One would therefore rightly question how does the land owner intend to dispose of the rest of the land? Would this further area be classed as infill by the Planning Officer? The whole scenario is utter nonsense.
I have previously highlighted a Planning Inspector’s view on the site as infill and for completeness will repeat it below …”.

Dr Tate then quoted in full paragraph 10 of the inspector’s decision letter of 9 January 2009. Having done so, he continued:

“It is clear within the report that no mention of this decision is made by the Planning Officer when it is materially relevant to the case. One would have to ask why not?”

The planning officer’s report

14.	In the report he prepared for the committee meeting on 5 July 2016 the planning officer presented a map of Tranwell Woods, showing the location of the site of the proposed development, with “Westwood Cottage” to its west, “Havis House” to its north-west, other dwellings to its north, east and south – including “Threeways”, “The Cottage”, “Skogen”, “Silver Birches”, and “Welhill”, and “Belt Plantation” to its south. It was “anticipated that access to the site would be from the north, off the existing access track that already serves properties at Westwood Cottage and Havis House …” (paragraph 2.2). 

15.	As the planning officer pointed out, the 2009 appeal decision letter was appended to the report (paragraph 1.3). He referred to the criticism of the draft committee report in Dr Tate’s letter of 5 June 2016 (paragraph 1.4), and a copy of that letter was also appended.
 
16.	On the policy in paragraph 55 of the NPPF, which states that local planning authorities should avoid new isolated homes in the countryside unless there are special circumstances, he considered that “development located within Tranwell Woods could not be classed as “isolated” given that there are a number of dwellings located relatively closely on three sides of the application site” (paragraph 7.11). 

17.	Under the heading “Green Belt”, he explained how the site had come to be in the Green Belt. The Northumberland County and National Park Joint Structure Plan had identified, in saved Policy S5, the general extent of the Green Belt extension around Morpeth. As he said, “[this] site lies within the Green Belt boundary described by Policy S5 and the detailed boundary shown in the Northumberland Local Plan Pre-Submission Draft Core Strategy” (paragraph 7.14).

18.	He explained that “[the] construction of a new building in the Green Belt will amount to inappropriate development unless such development falls within a prescribed exception under paragraph 89 of the NPPF”, and that “[if] the development does not fall within such a prescribed exception, … the application must demonstrate ‘very special circumstances’ …” (paragraph 7.17). He then gave this advice (in paragraphs 7.18 to 7.30):

  “7.18 At [sic] paragraph 89 of the NPPF ‘exception’ is the development of a new building that constitutes limited infilling within a village. It is considered that the proposed development would indeed fall within this prescribed exception, thereby not constituting inappropriate development. It follows that very special circumstances need not be demonstrated in respect of the development.

 7.19 For the above purposes, a “village” is not defined under the NPPF. Nor is a “village” specifically defined by the development plan, including the Neighbourhood Plan (which identifies some villages, but does not purport to provide any exhaustive list or definition). The same is true in respect of the phrase “infill development”. Ultimately a judgment is required to be made as regards what does and does not amount to (limited) infill development within a village. …

 … 

 7.22 Having regard to the above factors and to all relevant site and geographical location-specific factors, it is adjudged that Tranwell Woods constitutes a “village” for the purposes of applying the paragraph 89 NPPF ‘exception’ of limited infill development within a village that does not amount to inappropriate development in the Green Belt. This is so, also having considered previous decisions (including on appeal) made in respect of proposed residential development of the site, and the (appended) June 2016 correspondence received from Dr. Tate on this point.

 …

 7.24 Also, in visual impact terms, the application site is located adjacent to existing residential development and is materially enclosed by mature tree planting along its boundaries. The application site is not considered to be visually prominent.

 7.25 The development proposal would not give rise to any material encroachment into the open countryside or urban sprawl, not least because the application site lies within an established settlement. The proposed development would not be in conflict with any other purpose for including land within the Green Belt.

 7.26 … [It] is … noteworthy that the overall impact of the development in openness terms would be very modest, giving rise to less than material harm.

 7.27 By virtue of the introduction of a new dwelling in relative proximity to existing dwellings, there is a potential (considered to be very modest) for a slight, adverse impact upon the character and appearance of the area. However, both from near and distant viewpoints of the application site, it is not considered that the proposed development would give rise to any change capable of causing any material harm to the character and appearance of this part of the Green Belt.

 7.28 Overall, it is considered that the development proposal would provide a conspicuously low impact and discrete development that adequately maintains the integrity of the rural feel of intervening land.

 7.29 It is considered that the proposed development would constitute (paragraph 89 ‘exception’) limited infilling in a village, so as not to amount to inappropriate development in the Green Belt. Separately, only a very modest impact on openness would arise, not giving rise to any material harm. The proposed development would also not conflict with any of the purposes for including land within the Green Belt. Separately, the development would not give rise to any material harm to the character and appearance of this part of the Green Belt.

 7.30 In the overall planning balance … , it is considered that the less than material harm that would be caused by the proposed development to the Green Belt would be outweighed (and “clearly” so, albeit the application is not required to demonstrate ‘very special circumstances’) by other considerations that strongly militate in favour of the proposal.”

19.	Under the heading “Planning History”, the planning officer said this (in paragraph 7.64): 

  “7.64 Full consideration has also been given to the planning history relating to this site and the proposed development, and also to the two subsequent appeals made against the decision of the local planning authority to refuse planning permission … (which were dismissed on 08/02/2000 and 09/01/2009).” 

20.	In section 8 of the report, “Conclusion”, he said (in paragraphs 8.1 and 8.2):

 “8.1 … Material considerations, including the NPPF … , strongly indicate that the application should, in the circumstances of this case, be determined other than in accordance with Local Plan Policy H7, having regard to all relevant matters.

   8.2 The proposed development does not constitute inappropriate development in the Green Belt given that it would constitute (paragraph 89 exception) limited infilling in a village. …”.

21.	He recommended that planning permission be granted, subject to conditions (paragraph 9.1).

The committee meeting

22.	When the committee met on 5 July 2016, as the minutes record, the planning officer introduced the proposal to the members with the aid of a PowerPoint presentation. Dr Tate addressed the committee, explaining his objection. He referred to the conclusion of the inspector in the January 2009 decision letter that the site would not be “infill” development, and asked why the planning officer was now “overriding the precedent”. Ms Leffers-Smith and her brother spoke in support of the proposal. The minutes of the meeting also state:

“In response to questions from the Members of the Committee, the following information was noted: –
•	The Morpeth Neighbourhood Plan did not preclude other statements [sic], and Officers had taken the view that the NPPF allowed for infill in other villages.
•	The NPPF did not give a definition of a village.
•	There had been a sub-division of plots where planning had been approved, i.e., Juniper.”

23.	The committee resolved to grant planning permission, “subject to the reasons in the report”.

24.	The county council’s decision notice contains no reasons for the grant of planning permission, only reasons for the conditions imposed. 

Did the county council err in law?

25.	It is well established that, in principle, previous appeal decisions are capable of being material considerations in planning decisions, given the importance of consistency in decision-making (see my judgment in DLA Delivery Ltd. v Baroness Cumberlege [2018] EWCA Civ 1305, at paragraphs 29 and 30).

26.	In North Wiltshire District Council v Secretary of State for the Environment (1993) 65 P. & C.R. 137, which contains the classic statement of principle, the facts were not unlike those of the case before us. In that case, as here, the proposal was for a single dwelling-house on an undeveloped site in a village. There was a previous decision of an inspector on an appeal for a similar development on the same site. The inspector in that previous appeal had concluded that the development could not be regarded as infilling within the settlement, and dismissed the appeal. In the second appeal the inspector was made aware of the earlier decision. Without referring to it in his decision letter, he concluded that “though undoubtedly not infill in the usual sense of that word, … the addition of a further dwelling within this group need not in principle conflict with the council’s policies”. His decision was quashed in the High Court because he had failed to refer to the previous appeal decision and distinguish it, if he could, with clear reasons. The main point at issue in the second decision had been whether the development was infilling within the settlement – and on this question the inspector had failed to come to grips with the conclusions reached in the first decision. 

27.	In his judgment on the appeal to this court (with which Purchas L.J. and Sir Michael Kerr agreed), Mann L.J. said (at p.145): 

“…Where an inspector’s reasons do not indicate whether he has had regard to a material consideration which was placed before him then there must usually be (in Lord Bridge’s words [in Save Britain’s Heritage v Number 1 Poultry Ltd. [1991] 1 W.L.R. 153, at p.167]) “substantial doubt whether the decision [was taken] within the powers of the Act[”.] Accordingly the interests of an applicant will in that circumstance have been substantially prejudiced by the deficiency of reasons, for he is left in doubt as to empowerment and his ability to challenge on that ground. 
In this case the asserted material consideration is a previous appeal decision. It was not disputed in argument that a previous appeal decision is capable of being a material consideration. The proposition is in my judgment indisputable. One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency in the appellate process. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system. I do not suggest and it would be wrong to do so, that like cases must be decided alike. An inspector must always exercise his own judgment. He is therefore free upon consideration to disagree with the judgment of another but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision.
To state that like cases should be decided alike presupposes that the earlier case is alike and is not distinguishable in some relevant respect. If it is distinguishable then it usually will lack materiality by reference to consistency although it may be material in some other way. Where it is indistinguishable then ordinarily it must be a material consideration. A practical test for the inspector is to ask himself whether, if I decide this case in a particular way am I necessarily agreeing or disagreeing with some critical aspect of the decision in the previous case? The areas for possible agreement or disagreement cannot be defined but they would include interpretation of policies, aesthetic judgments and assessment of need. Where there is disagreement then the inspector must weigh the previous decision and give his reasons for departure from it. These can on occasion be short, for example in the case of disagreement on aesthetics. On other occasions they may have to be elaborate.”

28.	In Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314 (at paragraphs 41, 42 and 63) this court has recently emphasized, as it has consistently done before, that planning officers’ reports to committee ought to be read with reasonable benevolence, and not in an overly-legalistic way. The question for the court will always be whether, on a fair reading of the report as a whole, the officer has significantly misled the members on a matter that bears on their decision, and the error has gone uncorrected before the decision was made. An officer’s advice may be significantly misleading where the officer has failed to address a matter on which the committee ought to receive explicit advice if the local planning authority is to be seen to have performed its decision-making duties in accordance with the law (see, for example, R. (on the application of Williams) v Powys County Council [2017] EWCA Civ 427).

29.	Those familiar principles may now be seen in the light of recent authority on the giving of reasons for planning decisions – in this court in R. (on the application of Oakley) v South Cambridgeshire District Council [2017] 1 W.L.R. 3765, and in the Supreme Court in R. (on the application of CPRE Kent) v Dover District Council [2018] 1 W.L.R. 108. 

30.	In Oakley Elias L.J. said (in paragraph 26 of his judgment):

    “26. There are powerful reasons why it is desirable for administrative bodies to give reasons for their decisions. They include improving the quality of decisions by focusing the mind of the decision-making body and thereby increasing the likelihood that the decision will be lawfully made; promoting public confidence in the decision-making process; providing, or at least facilitating, the opportunity for those affected to consider whether the decision was lawfully reached, thereby facilitating the process of judicial review or the exercise of any right of appeal; and respecting the individual’s interest in understanding – and perhaps thereby more readily accepting – why a decision affecting him has been made. This last consideration is reinforced where an interested third party has taken an active part in the decision making-process, for example by making representations in the course of consultations. Indeed, the process of consultation is arguably undermined if potential consultees are left in the dark as to what influence, if any, their representations had.”

31.	In CPRE Kent Lord Carnwath (in paragraph 42 of his judgment, with which Lady Hale, Lord Wilson, Lady Black and Lord Lloyd-Jones agreed) observed that a decision letter of the Secretary of State or his inspector on an appeal was “designed as a stand-alone document setting out all the relevant background material and policies, before reaching a reasoned conclusion”. In a decision of a local planning authority this task “will normally be performed in the planning officers’ report”. He saw the common law principle of “fairness” as providing “the link between the common law duty to give reasons for an administrative decision, and the right of the individual affected to bring proceedings to challenge the legality of that decision”. There was also, he said (in paragraph 55), a further common law principle in play – as Lord Bridge of Harwich had described it in Save Britain’s Heritage (at p.170H), that “justice should not only be done, but also be seen to be done”. And he added:

    “55. … In the application of the principle to planning decisions, I see no reason to distinguish between a ministerial inquiry, and the less formal, but equally public, decision-making process of a local planning authority such as in this case.”

32.	Before H.H.J. Belcher it was argued on behalf of Dr Tate that the planning officer’s report contained no reasoning on the question of whether the proposed development was for “limited infilling” and showed no attempt to confront the obvious inconsistency with the inspector’s view in the decision letter of 9 January 2009, to which Dr Tate had drawn attention in his letter of objection. The inspector’s decision, it was submitted, was clearly a material consideration. The planning officer had also failed to explain how the development could be “classed as ‘infill’ given the low density development, the extensive grounds, and the fact that the site is surrounded by woodland” (paragraph 18 of the statement of facts and grounds).

33.	The judge recognized that “[the] issues of both “village” and “limited infill” are plainly material considerations, critical to the finding that the exception to inappropriate development in the Green Belt applies” (paragraph 44 of the judgment). In her view “[the] fact that individuals (including a Planning Inspector considering this site) may have different views as to what does or does not amount to infill, suggests that the conclusion is not necessarily an obvious one, and the reasoning for it ought to be explained”, and the county council’s reasoning would be “a matter of importance in the context of any future planning applications for other development within Tranwell Woods”. The approach contended for by the county council was contrary to the principles recognized by Lord Brown of Eaton-under-Heywood in South Bucks District Council v Porter (No.2) [2004] 1 W.L.R. 1953 (in paragraph 36 of his speech). Its “reasoning will be a matter of importance in the context of any future applications for other development within Tranwell Woods” (paragraph 45). She concluded (in paragraphs 46 and 47):
 
 “46. I accept Mr [Juan] Lopez’s submissions [on behalf of the county council] that the strategic planning committee was in no way bound by the Planning Inspector’s earlier decision that development on this site did not amount to infill development. I also accept that it was open to the strategic planning committee to reach a decision which was different to that of the Planning Inspector on this issue. However, given that this was a material consideration and central to the ultimate grant of planning permission, I am satisfied that some reasons should have been given to support the conclusion reached.

   47. I have come to the conclusion that, although they need only be limited, reasons should have been given for concluding that the development amounted to limited infill, particularly in the light of the earlier Planning Inspector’s decision to the contrary.”

34.	Mr Lopez sought to persuade us that those conclusions of the judge were wrong. He seemed to accept that the 2009 appeal decision was a material consideration here. He did not suggest that, either in his report or at the committee meeting, the planning officer had grappled with the inspector’s conclusion on the question of whether the proposed development was “limited infilling”. But he submitted that the county council did not have to provide reasons for what was, in truth, a simple planning judgment on that question. The decision to grant planning permission here did not have to be distinguished from the inspector’s decision. The inspector had not sought to prescribe the approach to be taken to the concept of “infill” development. He had merely applied, as Mr Lopez put it, “one reasonable test of infill development”. In North Wiltshire District Council the inspector in the second appeal had not referred at all to the previous decision. In this case, however, the previous decision was appended to the planning officer’s report and referred to at the committee meeting. The committee was not “significantly” misled by the advice it was given. The judge had failed to see that this was an excessively legalistic challenge. And she had also overlooked the question of “substantial prejudice” to Dr Tate. There was none. It was clear why the committee had decided as it did. There was no need to quash the planning permission.

35.	On behalf of Dr Tate, Ms Annabel Graham Paul defended the judge’s conclusions as impeccable and in accordance with well-established principles on consistency in planning decision-making, the court’s approach to challenges based on criticism of a planning officer’s report to committee, and the giving of reasons for planning decisions.

36.	The case law on consistency in planning decision-making was not referred to in argument in the court below. In my view, however, the judge’s approach was congruent with it, and her conclusions correct. 

37.	The question of whether a particular proposed development is to be regarded as “limited infilling” in a village for the purposes of the policy in paragraph 89 of the NPPF will always be essentially a question of fact and planning judgment for the planning decision-maker. There is no definition of “infilling” or “limited infilling” in the NPPF, nor any guidance there, to assist that exercise of planning judgment. It is left to the decision-maker to form a view, in the light of the specific facts. Can this proposed development be regarded as “limited infilling”, or not, having regard to the nature and size of the development itself, the location of the application site and its relationship to other, existing development adjoining it, and adjacent to it? That is not the kind of question to which the court should put forward an answer of its own. Nor will it readily interfere with the decision-maker’s own view. I agree with the observations to the same effect made by Sullivan L.J. in Wood v Secretary of State for Communities and Local Government [2015] EWCA Civ 195 (in paragraph 12 of his judgment):

  “12. Before this court it was common ground that whether or not a proposed development constituted limited infilling in a village for the purpose of paragraph 89 [of the NPPF] was a question of planning judgment for the inspector and the inspector’s answer to that question would depend upon his assessment of the position on the ground. It was also common ground that while a village boundary as defined in a Local Plan would be a relevant consideration, it would not necessarily be determinative, particularly in circumstances where the boundary as defined did not accord with the inspector’s assessment of the extent of the village on the ground. …”.

38.	In his decision letter of 9 January 2009 the inspector acknowledged (in paragraph 10) the absence of a relevant definition of “infill” development, either in the development plan or in government planning policy. But he favoured, as “one reasonable test of infill development”, the question of whether the development would occupy “a gap in an otherwise [developed] frontage …”. That is the test he adopted. And, when he applied that test, he found – as was a matter of fact – that the proposal before him was not “infill” development. The site was, as he acknowledged, “enclosed on three sides by dwellings”, with the plantation to the south. But it did “not represent a gap in an otherwise [developed] frontage on the C151 through [the village]”. It was not a vacant site in a line of buildings along a street or lane, and the proposed development would not be filling an obvious gap of that kind. It would, in fact, be a distinctly different form of development – the erection of a building behind the dwellings on the lane, on a plot created between “Bramblings” and “Westwood Cottage”, with access along the track leading to “Westwood Cottage” and “Havis House”. And, the inspector concluded, it would “add an intrusive element to this sensitive area of countryside”, setting a precedent for further development of the same kind.

39.	The planning officer was obviously aware of the inspector’s decision. He referred to it in his report and appended it. He must have been aware, therefore, of the inspector’s approach to the question of whether the construction of a dwelling-house on this site should be regarded as “infill” development, and the approach the inspector had adopted to that question. Yet in his assessment of the proposal on its planning merits, he said nothing about the inspector’s approach, plainly adopted a different approach, and reached a different conclusion. 

40.	There was no attempt to distinguish the previous decision on its facts, and I cannot see how that would have been possible. The situation on the ground – the site and its surroundings – had not materially changed since the inspector’s decision. And the proposal itself was, effectively, the same. 

41.	The policy context had changed, but not to become less restrictive – because the site was now in the Green Belt. This change in policy had only increased the importance of establishing whether the development was “infill” development or “limited infilling”. This was now a crucial question. The answer to it would determine whether or not the proposal was within one of the defined exceptions in paragraph 89 of the NPPF and thus not “inappropriate” development in the Green Belt, and, therefore, whether or not it had to be justified by “very special circumstances” if planning permission was to be granted.

42.	In the circumstances, it seems to me, the officer ought to have recognized that the county council was now dealing with a “like” case, in the sense to which Mann L.J. referred in North Wiltshire District Council. The committee was not, of course, bound to adopt the same approach as the inspector. It could properly take a different approach. But this was a case in which, if that was to be done, the decision-maker had to acknowledge that the approach now being adopted was materially different from that taken in the previous decision, and to provide some explanation, brief as that might be, for the inconsistency. This was a case in which the status of the site and development – whether “limited infilling” or not – was, in Mann L.J.’s words, a “critical aspect of the decision” being made, and, in the interests of consistency, it was necessary for reasons to be given for “departure from the previous decision”. Although this point was very firmly made by Dr Tate in his letter of objection, the officer did not tackle it, either in the advice he gave the members in his report or in the course of discussion at the committee meeting.

43.	This is not to endorse, or encourage, an excessively legalistic approach, nor to subject the planning officer’s report to undue scrutiny. It is simply the court asking itself whether the planning decision-maker has proceeded as the law requires, having regard to material considerations and providing adequate reasons to show that this has been done. 

44.	I accept that the principle of consistency goes, in this case, to a matter of fact and planning judgment, and one on which detailed reasons will generally not be required. And the question is not whether any of the planning officer’s conclusions was irrational. The fact remains, however, though he did not acknowledge it, that his approach and conclusion were starkly at odds with the inspector’s on a critical point, namely whether the proposal was for “infill” development – or “limited infilling”, and thus, under national planning policy, not “inappropriate” development in the Green Belt. It is not entirely clear what approach, in principle, the planning officer adopted to this issue. But it is clear that his approach to it and conclusion on it were different from the inspector’s. As the circumstances in North Wiltshire District Council show, the need for reasons to be given to explain such inconsistency is not removed by the fact that the planning judgment involved is relatively straightforward. In adopting a different “test” from the inspector’s, whatever that “test” actually was, the planning officer and committee were, in Mann L.J.’s words, “necessarily … disagreeing with [a] critical aspect of the decision in the previous case”. Why was the approach adopted and applied by the inspector unsuitable – if it was – in January 2009? And if it was suitable in January 2009, why was it no longer so in July 2016? In short, why was the construction of a dwelling on this site “limited infilling” in July 2016 when it was not “infill” development in January 2009? Some reasons were required to show that these questions had been faced and resolved by the county council in making its decision. None were given, either in the officer’s report, or in the minutes of the committee meeting – or in the county council’s decision notice itself. 

45.	In my view the county council’s decision to grant planning permission was vitiated by that failure, in much the same way as the second inspector’s decision was invalidated by a similar failure in North Wiltshire District Council. It was, plainly, an error of law. 

46.	Inherent in that error of law there was “substantial prejudice” to Dr Tate. He was left without an explanation of the county council’s approach and its reasons for differing from the previous decision. So too were other members of the public affected by the grant of planning permission. This is a case in which the interests of the claimant have been – as usually they will be – substantially prejudiced by a deficiency of reasons to indicate whether the decision-maker has had regard to a material consideration. It is substantial prejudice of the kind referred to by Lord Bridge in Save Britain’s Heritage (at p.167F) – “to an opponent of development when permission has been granted where the reasons for the decision are so inadequately or obscurely expressed as to raise a substantial doubt whether the decision was taken within the powers of the Act”. As Ms Graham Paul submitted, the court could not, in these circumstances, withhold an order to quash the planning permission. To do so it would have to speculate on the outcome of a lawful consideration of the proposal in the light of the 2009 appeal decision. It is of course unfortunate that this will be the third time the court has had to sustain a challenge to the county council’s decision on this application for planning permission.

47.	That, in effect, was the conclusion reached by the judge, and I think she was right.     

Conclusion

48.	For the reasons I have given, I would dismiss this appeal.

Lord Justice Peter Jackson  

49.	I agree. The issue of whether this proposed development represented limited infill was a straightforward planning judgment, but it was taken against the background of a depressingly protracted planning history. It is, to say the least, surprising that the planning officer and the committee did not explain, as they might have done in a very few sentences, why they were departing from the previous appeal decision, particularly as Dr Tate had presented the issue to them on a plate. But they did not do so in the smallest way, and the judge was right to quash their decision for lack of reasons, notwithstanding the continuing waste of public and private time and money caused by these repeated failures to reach a lawful decision in relation to this site.