Court of appeal warns against legalistic approach to planning decision

Sydney Mitchell LLP

When making planning decisions, local councillors are entitled to use common sense and local knowledge and it is not for judges to take a legalistic approach and second guess their conclusions.

The Court of Appeal made that point in opening the way for conversion of a large apple storage barn into four executive homes.

There was no dispute that the development in open countryside conflicted with the local development plan.

However, planning permission was granted in reliance on the recommendations of a planning officer.

He had reported that the developer could in any event take advantage of permitted development rights to turn the barn into three new homes without the need for planning permission.

The developer also did not require the council’s consent to demolish and replace a bungalow on the land, so long as the building’s existing footprint was not exceeded.

In those circumstances, the officer reported that it would be preferable to grant planning consent than to require the developer to carry out the project in a contrived and piecemeal manner in reliance on permitted development rights.

A local objector’s challenge to the permission was rejected by the High Court.

In dismissing the objector’s appeal against that ruling, the Court of Appeal noted that the officer’s report conformed to the literal meaning of the permitted development rights and rejected claims that he had given the council flawed advice.

Arguments that the officer had proceeded on the mistaken basis that the presumption in favour of sustainable development applied to the project also fell on fallow ground. In giving guidance for the future, the Court emphasised that judges should avoid subjecting planning decisions to excessive legalistic analysis.

Planning was a matter for local authorities and it was vital that councillors should be able to freely and fairly exercise their own judgment without undue interference by the courts.

It was particularly undesirable that planning officers’ reports should be picked apart forensically.

If you are about to leave a let property or have a tenant that seeks to end its lease, for advice please contact Sundeep Bilkhu on 0121 698 2200 or email