Challenge to Housing Permission Outside Parish

On 7 July 2023 the High Court quashed the permission granted by Uttlesford District Council for four houses in a sensitive village location, adjacent to a Protected Lane, on a site long opposed for development by the Parish Council and Parish Residents, and awarded the Parish Council costs of £35,000. Ben Fullbrook, Landmark Chambers, was instructed.

The judge agreed with the Parish Council’s two main grounds in the case; (1) the permission was granted on a fundamentally flawed approach to the consideration of a purported fallback development at the Site which relied on an earlier Lawful Development Certificate, and (2) the heritage impacts were not lawfully considered. Ground 1 raised important principles about a fallback position, and examined how a flawed officer’s report was not, in this case, remedied by the officer’s statements made at a committee meeting.

In reaching his judgment, Dan Kolinsky KC Sitting as a Deputy Judge of the High Court held that:

“A fall-back (i.e. development which an applicant could take without a further grant of planning permission) is capable of being a material consideration in favour of granting planning permission… In my view members were not given a legally adequate direction in written form [the officer’s report] on how to approach the contentious issue of the fall-back. That position was essentially accepted by [the barristers for the Defendant and the Developer].”

The Court had to consider whether this “gap” was filled by the discussion at the meeting of the planning committee. The Judge found:

“I accept as a matter of principle… that oral discussions can correct defects (and by necessary implication plug gaps) in officers’ reports to committee.”

The judge then analysed the transcript of the committee meeting and found:

“[49]. … that [the office’s] guidance to members did not set out for them the framework of issues which they had to consider. In my view there were 3 key defects in the advice that members were given…

[53] In my judgment therefore, neither the OR nor the advice given orally to the Committee,  gave members legally adequate guidance as to how to approach the fall-back issues in the specific circumstances of this case”

The underlying planning permission was for a sensitive site immediately adjacent to the Widdington Conservation Area and near multiple grade II listed buildings. Trees along the protected lane were given legal protections under a temporary Tree Protection Order which the Parish Council has now formally asked Uttlesford District Council to confirm.

The Protective Costs Order dispute

Although the scheme comprises only four dwellings the Parish Council, well-supported by local parish residents, considered the development on the site damaging to their village, the Conservation Area, and the Protected Lane. The Parish Council used precept funds supplemented by CrowdJustice for their legal costs. During the permission stage of this case, Uttlesford District Council argued that the Parish Council should not benefit from a £10,000 protective costs order due to the funds raised through the CrowdJustice platform. Lang J disagreed with these submissions when deciding permission in January 2023 and granted a standard protective costs order of £10,000 with the normal £35,000 reciprocal cap.

Following the successful outcome the Court ordered Uttlesford District Council to pay £35,000 towards the Parish Council’s legal costs.