East Staffordshire BC v SoS for CLG [2016] EWHC 2973 (Admin) raised an issue about the scope and effect of paragraph [14] of the National Planning Policy Framework (“NPPF”) on the presumption in favour of the grant of planning approval to sustainable developments which are consistent with Local Plans. The application raised three issues of some wider significance: First, the existence and scope of the discretion to approve a development which is inconsistent with a Local Plan; second, the duty of decision makers to address the weight and significance of the particular reasons why a proposed development is inconsistent with a Local Plan; and third, the relevance of a finding by an Inspector that a proposed development which is inconsistent with a Local Plan is nonetheless “sustainable“.

The significance of the issues arising in relation to the scope of paragraph [14] NPPF was brought into sharp relief because that paragraph and the test it sets out have been the subject of conflicting decisions of the High Court. Paragraph [14] has also been applied in a number of different and inconsistent ways in decisions of Inspectors.

In this case the Inspector allowed an appeal from a decision of the Borough Council which had refused permission for the erection of up to 150 dwellings and other works. The Inspector decided to grant permission even though the proposed development was inconsistent with the Local Plan and in particular a variety of strategic policies (“SP”) in the Plan. Paragraph [14] NPPF creates a presumption in favour of sustainable development. It does this by reference to whether a proposal is consistent or otherwise in relation to a Local Plan; and it considers the position where no up-to-date Local Plan exists. On the application of the test set out in paragraph [14] it was common ground in this case that the Proposed Development was in conflict with the Local Plan. In coming to the conclusion that he could nonetheless approve the proposal the Inspector stated that he was entitled to apply a broader presumption in favour of sustainable development which operated outwith paragraph [14] and which applied wherever a decision maker concluded that a development (including a development inconsistent with the Local Plan) amounted to a “sustainable development“. The Council challenged the Inspector’s decision and argued that the Inspector had misdirected himself in law as to the test he should apply.

Green J concluded that the Inspector had erred in law and misdirected himself as to the test to be applied and the approach to be adopted to the assessment of the evidence.

Green J observed that the point of departure for the analysis was that the Proposed Development is contrary to SPs of the Local Plan and on the normal application of the NPPF the application for approval would be refused. He stated that the analysis of the issue must be performed in the context of: (a) paragraphs [6] – [16] of the NPPF which specifically covers sustainable development; and also (b), the remainder of the NPPF. The NPPF lays great store by the encouragement of sustainable development. Paragraph [7] NPPF identifies three ingredients of a “sustainable development“.  Paragraphs [11] – [16] NPPF describe and then explain the “Presumption in favour of sustainable development“.

Pursuant to Section 38(6) PCPA 2004 and Section 70(2) TCPA 1990 planning law stipulates that applications for planning permission should be determined in accordance with the Development Plan unless material considerations indicate otherwise. Paragraph [12] NPPF makes clear that the Framework does not change the statutory status of the Development Plan as the starting point of decision making. Importantly it also states that proposed developments consistent with an up-to-date Local Plan should be approved but proposed developments that conflict should be refused unless “other” material considerations indicate otherwise. The use of the word “should” presupposes a presumption of refusal which is rebuttable by other material considerations. Paragraph [13] NPPF states that the Framework constitutes guidance for local planning authorities and decision makers both in drawing up plans and as a material consideration in determining applications.

Paragraph [14] NPPF was at the core of this case. It described, in substance, a formula or test for determining when the presumption in favour of sustainable development applies and it creates as the pivot of the analysis the context and substance of an up-to-date Local Plan. It has three components: (i) a statement of principle (“the golden thread“); (ii) application of the principle in the context of plan-making; and (iii), application of the principle in the context of decision-making.

Paragraph [15] NPPF recognises that the concept of “sustainable development” is intrinsic to Local Plans so that application of the principles set out in a Local Plan will create a predictable and transparent means of securing sustainable developments.

Green J analysed first the existence of a discretion outside of paragraph [14] NPPF. He said:-

“21. The first point to address is whether paragraph [14] NPPF is an exhaustive and comprehensive test for the operation of section 38(6). Section 38(6) PCPA 2004 makes clear that, prima facie, it is the Local Plan that governs and prevails. As paragraph [12] NPPF makes clear (consistently with section 38(6)): (a) a proposal that is inconsistent with a Local Plan “should be refused“, unless “other material considerations indicate otherwise“; and (b), the Framework does not alter the statutory status of the Local Plan as the fons et origo of decision making. In itself the Local Plan is therefore a strong indication of where the answer lies in a given case. The NPPF is “guidance” which is relevant in both the drawing up of the Plan “… and as a material consideration in determining applications” (cf paragraph [13] NPPF).

22. In the present case the point of departure, applying section 38(6), is that the proposal was in conflict with the Local Plan and therefore should be rejected absent “other” countervailing and overriding material considerations. Paragraph [14] NPPF is capable in principle of amounting to such a material consideration but on the facts of this case, as the Inspector recognised, its application led to refusal of the application. The limb of paragraph [14] NPPF dealing with “decision-taking” indicates that where a proposal is consistent with relevant up-to-date plans it should be approved. It is silent as to what happens in the converse situation, namely where it is inconsistent. However, in such a case where the proposal is inconsistent with relevant policies it must be implicit in paragraph [14] (a fortiori) that it should not be approved and this accords with paragraph [12] NPPF which indicates that a proposed development which is inconsistent with paragraph [14] should be refused approval. This is not an abrogation of the presumption in favour of sustainable development because that concept is thoroughly embedded in, and permeates throughout, the entire Local Plan in accordance with the “golden thread” which runs through both plan-making and decision-taking. If a proposed development is inconsistent with paragraph [14] it is not therefore a “sustainable development” at least as that term is understood in paragraph [14] NPPF. A decision that a proposal should not be approved because it is inconsistent with the Plan is a conclusion which, necessarily, therefore accords with the principles governing the existence and approval of sustainable developments in the NPPF.
23. But there is an important caveat to this conclusion. Whilst the NPPF and, in this case, paragraph [14] thereof, is normally the preponderant or major part of the material considerations exception in section 38(6), it cannot altogether occupy the field of “material” considerations. In principle there must be some scope for a discretion to approve a proposed development which is inconsistent with the Local Plan. All the parties in this case including the Secretary of State, accept, in principle, this proposition. The dispute at base therefore is not as to the existence of a discretion so much as to the scope of this residual power.
24. There are three reasons why in principle there must be some residual scope for the exercise of discretion. First, as a matter of elementary principles of public law this is the natural consequence of section 38(6) which cannot be construed as permitting policy guidance (i.e. the NPPF) to fetter the statutory discretion conferred thereby: See in this respect, R (West Berkshire District Council) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441 at paragraph [19]. Secondly, this is acknowledged in footnote 10 to the NPPF which operates as a rider to the expression “for decision-taking this means…” in the body of paragraph [14]. When one combines that text with the footnote one gets: “for decision-taking this means, unless material considerations indicate otherwise…“. This therefore supports the conclusion that the test in paragraph [14] is not all-embracing. It acknowledges that the proviso to the section 38(6) may in principle cover a territory somewhat broader than paragraph [14]. Third, there is section 19(2)(a) PCPA 2004 which states, in relation to plan-making, that the local planning authority must have regard to national policies and advice contained in guidance issued by the Secretary of State. And of course the NPPF is the paradigm example of such national policies and advice. However section 19(2)(a) makes clear that local planning authorities are only required to “have regard to” such national policies and advice. They are not straight-jacketed by such policies and advice. This also suggests that, at least to some degree, there is a residual discretion operating outside of paragraph [14].”

Green J analysed next the scope of the discretion outside of paragraph [14] NPPF. He said:-

“30.    The crux of the dispute thus focuses upon whether the Inspector correctly delineated the ambit of his permissible discretion. In my judgment it follows from the principles of interpretation which govern the scope and effect of paragraph [14] set out above that its application in a given case will cover the preponderant or major part of the exercise of discretion inherent in the concept of “material considerations“. Paragraph [14] is essentially about process not outcome … There is no reason why it should not sensibly suffice to cover the generality of cases which arise. … The outcome inherent in paragraph [14] contemplates a two stage process with “plan-making” preceding “decision-taking“; and then, in the case of the latter, a bifurcated approach contingent upon the existence (or otherwise) of an adequate Local Plan. In both cases guidance is given as to the circumstances when the presumption in favour of sustainable development is to apply, but critically for the present case, it also indicates where it is not to apply or even is to be reversed (when read in the light of paragraph [12] NPPF). The test or algorithm uses as the pivot for a decision the Local Plan. There is in relation to decision making little scope in logic or substance for departing from the algorithm in paragraph [14] unless there is some reason to reject a Local Plan.

31. Insofar therefore as paragraph [14] permits of a residual discretion it must be recognised that the outcome arrived at by the operation of paragraph [14] should carry considerable gravitational pull. It should yield only as an exception to the norm where there exists objective and substantial reasons which can be readily demonstrated to a high degree of probative value and which takes into account the particular reasons why a development has been found to collide with the Local Plan. I should add however (see paragraph [54] below) that I express no concluded view on exactly how exceptional “exceptional” actually is; this being an issue better explored in a case where that issue truly arises.
32. When a decision is being considered in a case where the proposed development conflicts with the Local Plan (and is thereby prima facie to be refused under paragraphs [12] and [14] NPPF) it follows from all of the above that the starting point for analysis should not be that there is a presumption in favour of the development. This is because the outcome of the operation of the paragraph [14] algorithm is that the presumption has been rebutted. … In such a case, therefore, the decision maker’s starting point should be that the proposal conflicts with paragraph [14] and is not therefore consistent with the presumption of sustainable development. Applying paragraph [12] the development “should be refused“. The question which follows is whether, nonetheless, there are substantial and demonstrable objective benefits which outweigh this adverse starting point. My analysis leads me to favour a relatively narrow construction of the residual discretion outside of paragraph [14].”

Finally, Green J analysed considerations supporting the (relatively) narrow construction of paragraph [14] NPPF.   He said:-

“34.    There are a number of supplementary reasons which reinforce me in the conclusion that I have arrived at above. These may be summarised as follows.

35. First, my conclusion is consistent with the core planning principle that planning decisions be made with a high degree of predictability and efficiency. …
36. The paragraph [14] algorithm enables decision makers to take decisions by reference to the Local Plan and paragraph [15] NPPF (set out at paragraph [13] above) explains that by this route decisions on “sustainable development” will be taken. This means that decisions will be taken transparently and on the basis of transparent, and objectively determined, criteria. The desirability of clarity and transparency is not to be underestimated in an area of economic activity where predictability is critical to forward-looking business planning. The alternative analysis, whereby a broad discretion arises outside of paragraph [14] NPPF and notwithstanding a Local Plan, leads to uncertainty. … In my view a construction which furthers predictability and transparency based on adherence to the Local Plan is one which is to be preferred over one that leads to uncertainty.
37. Second, paragraph [14] reiterates the powerful nexus between the Local Plan and “sustainable development” with the latter being defined by reference to the former. This is explicit in the “plan-making” component of paragraph [14]. But the primacy of the Local Plan is a theme which runs throughout the NPPF generally. For example, paragraphs [150] – [151] makes clear that Local Plans “… are the key to delivering sustainable development that reflects the vision and aspirations of local communities” (paragraph [150] NPPF). Local Plans must be prepared with the objective of contributing to the achievement of sustainable development and they should be consistent with the presumption in favour of sustainable development (paragraph [151] NPPF). Paragraph [182] NPPF makes clear that a Local Plan should be examined by an independent inspector whose role is to assess whether the Plan has been prepared in accordance with, inter alia, legal and procedural requirements, and whether it is “sound“. A local planning authority should submit a plan for examination which it considers to be “sound” because it is positively prepared, justified, effective, and: “consistent with national policy – the plan should enable the delivery of sustainable development in accordance with the policies in the Framework“. Paragraphs [183] and [198] emphasise that Neighbourhood Plans are intended to deliver sustainable development and that where a planning application conflicts with the Neighbourhood Plan that has been brought into force permission should not normally be granted. The upshot of this is that a concept of “sustainable development” is, and indeed must be, a driving principle behind every Local Plan as the predominant means of securing sustainable development. When this is taken into account as a guide to interpretation of paragraph [14] it underscores the considerable importance of planning decisions being taken consistently with the Local Plan. It does not permit of an interpretation which assumes that planning proposals which are inconsistent with the Local Plan remain subject to, and the beneficiary of, some extraneous presumption in favour of developments that an Inspector concludes is “sustainable” in disagreement with a Local Plan. Underpinning the primacy of the Local Plan in the NPPF is a recognition of the political importance of “localism“. The Local Plan is a document widely consulted over which reflects the balancing of a multiplicity of different, often competing, considerations. As such there is a very democratic reason why it must be accorded great weight. …
38. This conclusion, namely that the concept of “sustainable development” is predominantly implemented via the Local Plan, is also reflected in the Impact Assessment (July 2012) which accompanied the NPPF. …
39. The centrality of up-to-date Local Plans was also perceived as desirable to avoid the uncertainty which flowed from a set of rules which encouraged decisions to be made through systematic use of the appeals procedure: … The Impact Assessment is … consistent with the policy contained in the NPPF and supports the conclusion that it is through the Local Plan that sustainable development will be implemented and introduced. This is a consideration which lends support for the conclusion I have arrived at which is that the scope for the approval of developments which are inconsistent with a Local Plan is limited. It seems to me that, although my judgment does not turn upon it, the contents of the Impact Assessment are admissible as one source of guidance to an interpretation of the NPPF (by analogy with the principles governing the admissibility of pre-statutory material as a guide to construction of the subsequent measure: …
40. Third, emphasis has been attached by both parties albeit in different ways to the phrases “golden thread” and “means” in paragraph [14]. The argument with regard to “means” (advanced by ESBC and the Secretary of State) is that it is to be treated as “equates to” or “must lead to” or some other proxy phrase indicating that the operation of the paragraph [14] test will inexorably lead to the correct result. In my view there is some force in this but, because I have accepted that there is scope for an element of discretion outside of paragraph [14], the phrase cannot lead to the conclusion that the operation of paragraph [14] leads to an unassailable and irrebuttable result in every case. It is nonetheless an indication that the test in paragraph [14] is intended to cover the overwhelming majority of cases. …”

Green J applied the above principles to the facts. He found the Inspector to have been in error in three respects.  The first was incorrect resurrection of the presumption.  The second was the omission of any balancing exercise taking into account the reasons why the proposed development was inconsistent with the Local Plan.  Green J said:-

“45.    In my judgment if a decision maker is to approve a proposal which is inconsistent with the Local Plan then the reasons for that (which include addressing the weight of the reasons why the development was inconsistent with the Local Plan) must be set out in the decision. …”

The third respect was the concept of “sustainable development”. The Inspector had not explained why the proposed development was “sustainable” when it prima facie was inconsistent with significant policies in the Local Plan.

Green J concluded with a postscript as to “how exceptional is exceptional”. He said, at paragraph 54:-

“There is one note of caution that I wish to make (flowing out of paragraph [31] above). I have recognised the existence of a discretion outside of paragraph [14] NPPF. I have suggested that it is likely to be the exception rather than the norm that it will be exercised in favour of approval. However it has not been necessary, in order to decide this case, to determine quite how exceptional, “exceptional” has to be. … The parameters are for another case to measure. … It may … be for other cases to explore the issue of the precise scope of the exception in greater detail when a case properly turns upon the point.”

In a rationality challenge the intensity of review varies with the subject matter. As Sullivan J, as he then was, said in R (Newsmith Stainless Ltd) v SoS for the Environment (2001) EWHC 74 (Admin) an applicant alleging Wednesbury unreasonableness as regards decisions based on planning judgment “faces a particularly daunting task”.  In Goring-on-Thames Parish Council v South Oxfordshire District Council [2016] EWHC 2898 (Admin) Cranston J said, at paragraph 49:

“That was said of a decision by a planning inspector, but in my view there is no difference with the decisions of local planning authorities, when properly advised by their officers.”

In Birchall Gardens LLP v Hertfordshire County Council [2016] EWHC 2794 (Admin) Holgate J held that the Council’s decision to grant planning permission for a recycling facility for inert waste within the green belt was lawful.  The decision was within the exercise of the Council’s planning judgment and was not irrational.  It had correctly applied its waste allocation and green belt policies.  Its screening opinion that an environmental impact assessment (“EIA”) was not required was adequately reasoned.

Holgate J stated the legal principles as follows:-

“66.     …  A screening opinion does not involve a detailed assessment of factors relevant to the grant of planning permission; that comes later and will ordinarily include environmental factors. Nor does it include a full assessment of any identifiable environmental effects. It includes only a decision, almost inevitably on the basis of less than complete information, as to whether an EIA needs to be undertaken at all. The court should not impose too high a burden on planning authorities in relation to “what is no more than a procedure intended to identify the relatively small number of cases in which the development is likely to have significant effects on the environment.”

67. The issues of whether there is sufficient information before the planning authority for them to issue a screening opinion and whether a development is likely to have significant environmental effects, are both matters of judgment for the planning authority. Such decisions may only be challenged in the courts on grounds of irrationality or other public law error …”

“72.     … the language used in a screening opinion should be read no more critically than a decision letter. It should be read in a straightforward way as a document addressed to parties familiar with the issues …”

James Goudie QC

For the purposes of Aarhus Convention protection, “environment” is to be given a “broad meaning” : per Patterson J in R (Dowley) v SoS (2016) EWHC 2618 (Admin).

What is the standard of reasons to be applied to a local planning authority’s decision to grant planning permission? That was one of the questions in R (Hawksworth Securities) v Peterborough City Council (2016) EWHC 1870 (Admin). The Judge’s answer was that the position is not the same as it is with respect to a decision on a planning appeal. That is an adversarial procedure. A LPA however is not adjudicating in a dispute between planning applicant and objector. 

A LPA is not required to give reasons for rejecting objectors’ representations. It need only summarise the main reasons for its decision. It can do so briefly. 

It is not required to set out each step in its reasoning. It does not have to indicate what factual matters were accepted or rejected.

Ministers making planning decisions (such as an application for planning permission for a wind farm) should not allow themselves to be lobbied, by parties to the planning process, or by local MPs: Broadview Energy Developments Ltd v SoS for CLG and South Northamptonshire District Council [2016] EWCA Civ 562, considering the duty to act and to be seen to act fairly and even-handedly owed by political decision-makers (such as a decision by the SoS on a “recovered”, i.e. called in, planning application).  The Court of Appeal drew attention (para 16) to the February 2012 Guidance on Planning Propriety Issues from the SoS’s own Department.  Longmore LJ relied (para 25) on the “fundamental principle of the common law” which requires a decision-maker to listen to and take into account both sides of an argument, and continued:

“26.      To a 21^st century public lawyer this is a stark and obvious application of the principle that a decision-maker must not entertain representations from one party without finding out what other parties have to say on the matter. Nevertheless the principle has to be applied sensibly. If a party to an inquiry or an objector seeks to bombard a minister with post-inquiry representations which are merely repetitive of the representations made at the inquiry itself and every time that happened the Minister was obliged to circulate the representations for comment, the decision-making process could easily be subverted. That is effectively what has happened in this case so far as the written correspondence and representations are concerned. In these circumstances the Minister has not “entertained” privately made representations; he has merely made his decision in the light of all the evidence given and representations made to the inspector which were known to all parties. Although it could be said that there was a technical breach of para 4 of the Guidance, there was no breach of the rules of natural justice, see Fox Land v SSCLG [2014] EWHC 15 (Admin) paras 22-5 per Blake J. No doubt that is the reason why Mr Pike concentrated on the fact that Mrs Leadsom had the advantage of face to face meetings with Mr Hopkins in the House of Commons tea room and the lobby. It is those occasions which are said to be unfair since Broadview had no comparable advantage.

27. Para 4 of the Guidance draws no distinction between private representations made in writing and those made face to face and the same principle should therefore apply; if oral representations are merely repetitive of matters already ventilated at the inquiry, there should be no obligation to inform other parties of the contents of such representations and invite comments. But one has to pause, because any judge is acutely aware of the difference oral advocacy can make particularly if it occurs in the absence of the other side. Moreover in the case of written representations it is easy enough to assess whether they are merely repetitive of earlier representations whereas with oral representations one cannot be so sure. That is particularly so in cases like the present in which there is no evidence from the Minister himself but merely hearsay statements from two of his civil servants that Mr Hopkins told them he had no recollection of any meetings with Mrs Leadsom. In these circumstances it was not open to the Secretary of State to rely on rule 17(4) of the Rules and say that he disregarded Mrs Leadsom’s representations and Mr Kolinsky QC on behalf of the Secretary of State did not seek to do so.

28. In these circumstances it is, in my judgment, incumbent on a Minister taking a planning decision to make clear to any person who tries to make oral representations to him that he cannot listen to them. He can add (if the inquiry has concluded) that anything such persons want to say can be put in writing and sent to the Planning Casework Division. Although such refusal to listen is not in terms mandated in the Guidance it is effectively the thinking behind paras 11 and 12 of that Guidance when those paragraphs say that those seeking to make representations should be advised to write to the relevant official in the Planning Casework Division if the inquiry has concluded and that it must be made clear that any representations “made by whatever means” can only be taken into account if they are also made available to interested parties for comment.

29. Mrs Leadsom’s letter following the tea room conversation asserts that she made several points to Mr Hopkins and finishes by saying that she appreciates he cannot comment on individual applications. There is no evidence, however, that Mr Hopkins said he could not listen to what she was saying. For the reasons I have given he ought to have so said and, for my part, I would not endorse that part of the judge’s judgment in which he said that lobbying of Ministers by MPs was part and parcel of the representative role of a constituency MP with its implication that such lobbying was permissible even when the Minister is making a quasi-judicial decision in relation to a controversial planning application. MPs should not, with respect, be in any different position from other interested parties. Whether the failure of the Minister to say (politely) that he could not listen to what Mrs Leadsom had to say constitutes, on the facts of this case, a material breach of the rule of natural justice or gives rise to the appearance of bias is, of course, a somewhat different matter.”

Applying the principles to the facts, Longmore LJ said:

“30.      Once it is clear that the written representations added nothing to what had already been ventilated at the inquiry and there was nothing new that Broadview could say in response, Broadview is left with relying on the tea room and the lobby conversations. The question is whether the fact that Mr Hopkins did not state at the beginning of the conversation that it should not continue amounts to a material breach of the “audi alteram partem” principle. Here the chronology is important. The second (and relevant) inquiry took place between 8^th and 24^th October 2013; on 11^th October 2013 during the inquiry the Secretary of State called in the application for determination by himself. The tea room conversation with Mr Hopkins took place shortly before 2^nd December 2013 at a time when it was unlikely to have been decided whether it would be Mr Pickles or Mr Hopkins was to take the necessary decision and, in any event, well before the inspector made his report on 14^th April 2014. There were then the additional consultations referred to above and it was not until 7^th November 2014 that the Planning Casework Division in the Department (which, of course, had had no tea room, or other, conversation with Mrs Leadsom) sent its memorandum to Mr Hopkins recommending refusal of permission. It was thus at this stage (November 2014) that Mr Hopkins had to make up his mind on the application (as he did on 11^th November 2014) nearly a year after the tea room conversation had taken place. In these circumstances I find it impossible to conclude that the tea room conversation played any part in his decision making process. The breach of natural justice in failing to cut off the conversation and letting the conversation continue in circumstances in which both parties knew that the Minister could not comment on individual applications is, at the most, a technical breach which cannot have made any difference to the ultimate decision.

…

36. Nor do I think it arguable that a well informed observer would consider that there was a real possibility of bias on the part of Mr Hopkins. The well-informed observer would know that it was the responsibility of the relevant Minister to make difficult decisions about controversial projects such as on-shore wind farms. He would also know that sometimes such decisions are, as this one was, finely balanced. He would not think that a Minister’s decision in favour of a vocal body of local objectors supported by their local MP showed any bias against the promoter of the wind farm project. He would accept that the Minister had to make a decision one way or the other and think that the parties should accept the outcome.

37. Nevertheless the accusation of bias made in this case shows how important the principle is that Ministers making planning decisions should not allow themselves to be lobbied by parties to the planning process or by local MPs. If they do allow it, accusations of bias are all too easily made however unjustified they may be once the proper principles exemplified by Magill v Porter [2002] 2 AC 357 are applied.”

Lewison LJ agreed, as did McCombe LJ, who added:

“41.      It seems to me that there was undoubtedly a breach of paragraph 4 of the Guidance by what appears to have occurred in the “tea room conversation” between Mr Hopkins and Ms Leadsom. On the facts of this case (in particular in the light of the chronology and the factors set out in paragraph 30 of my Lord’s judgment), however, this breach was not of sufficient moment to call for the quashing of the Secretary of State’s decision on the grounds of a breach of the principles of natural justice. Had the chronology been otherwise, and if the conversation had been more closely proximate in time to the decision taken, then it seems to me that the lawfulness of the decision might well have been in peril.

42. I agree with what my Lord says in paragraph 28 as to the need for Ministers to eschew conversations such as the one in issue in this case when they are seised of quasi-judicial decisions of the present nature. For my part, I would hold that such conversations are clearly a contravention of the clear purpose of paragraph 4 of the Guidance, which needs to be construed broadly as opposed to rigidly, and a breach of ordinary principles of fairness in our law. If a Minister gives an opportunity to a developer to put to him a case in way that is not afforded to objectors and this can lead to a successful challenge to a subsequent decision (as envisaged in paragraph 4), such an opportunity given to an objector (including an MP) can equally lead to such a challenge.
    
43. I would not wish to leave this case without stating my emphatic disagreement with the approach adopted by the judge in paragraphs 33 to 35 of his judgment. Constituency matters are one thing, but quasi-judicial decisions to be made by Ministers are another. Once a planning issue falls to be decided by a Minister, as part of the statutory planning appeal process, then representations by anyone (including an MP for the relevant constituency) can only take place lawfully in compliance with proper standards of fairness. One party should not be permitted to have access to the decision-maker in order to make representations in a manner not afforded to his opponent.

44. I disagree, in the present context, with the judge’s statement in the final sentences of paragraph 35 when he says that lobbying of Ministers is part and parcel of the representative role of a constituency MP and that it would be wrong for a court to conclude that there was anything improper with it as a matter of law. The statements would be clearly correct in respect of “ordinary” constituency matters but, for my part, I consider that they are incorrect if applied to “lobbying” of a Minister when he is charged with making an appeal decision of the present character. Indeed, the Guidance issued by the Minister’s own Department, envisages correctly the risk of successful legal challenges to decisions if Ministers do not adhere to the ordinary principles of fairness and natural justice in the context of decision-making functions in planning cases.”

It is wrong for a LPA to treat as a material consideration in determining an application for planning permission an offer by the applicant to make an annual community donation which could be used for anything which benefitted the local community. The donation does not serve a planning purpose.  It is off-site and is not related to land use.  The application considered in Wright v Forest of Dean District Council [2016] EWHC 1349 (Admin) was for permission for a wind turbine.  The donation would derive from the profits made out of the operation of the turbine.  Nonetheless the offer had no real connection with the development and was not fairly and reasonably related to it.  It did not regulate how the development might operate.  It did not address any impact on infrastructure.  It did not make the development more attractive.  The potential applications of the donation were too wide-ranging and too open-ended.  The donation being for community benefit did not necessarily mean that it was a material planning consideration.

Two important points are confirmed by Ouseley J in St Modwen Developments v SoS for CLG and East Riding of Yorkshire Council [2016] EWHC 968 (Admin).  First, there is no requirement for a site to have existing planning permission in order for the site to be available for housing supply for the purposes of NPPF para 47.  Second, the LPA had been entitled not to assess housing need only by reference to their own area.

Ejusdem generis has no place in the interpretation of planning conditions, the Court of Appeal has held in R (XPL Ltd) v Harlow Council [2016] EWCA Civ 378, a Judgment on 15 April 2016 on appeal from a first instance decision on 28 November 2014 with respect to a breach of condition notice served by the Council on 3 June 2014.

Lindblom LJ reiterated the principles at paragraphs 16 and 17. The general rule relating to the interpretation of a planning permission that is clear, unambiguous and valid on its face, is that regard may only be had to the planning permission itself, including the conditions, if any, imposed upon it and the reasons given for those conditions in the decision notice itself.  The planning permission and its conditions must be construed as a whole, as a “reasonable reader” would. If there is ambiguity in the wording of the permission, one can look at extrinsic material, including the application, to resolve it. There is only limited scope for the use of extrinsic material in the interpretation of a public document, such as a planning permission.  It is also relevant to the process of interpretation that a failure to comply with a condition in a public law consent may give rise to criminal liability.

The Court of Appeal found that the planning condition in the Harlow case satisfied the three conditions for validity: relevance to planning, a reasonable relationship to the development permitted, and reasonableness in the sense of its not being perverse. Lindblom LJ said, at paragraph 27, that in interpreting it he did not accept that the “ejusdem generis” principle “has any place” in the interpretation of planning conditions.  He described the suggestion that it did as “novel”.  In any event he saw no need to resort to it.

At paragraph 30 he added:-

“… there is no ambiguity either in the condition itself or in the condition and its reason read together. It follows that there is no need to go in search of extraneous material … as an aid to interpretation.  Conditions and their reasons should be interpreted, if they can be, in a benevolent way, and not in a search for inconsistency or lack of precision …”