Successful Challenge to Rural Residential Dwelling

North Devon District Council agreed to quash consent for the erection of an open market residential dwelling on the grounds that it should have, but failed, to give any adequate reasons for its decision to grant planning permission contrary to the officer’s recommendation.

In January 2024, North Devon District Council granted planning permission for the erection of an open market residential dwelling in the rural hamlet of Patchole, Kentisbury. The application followed two previous applications, one withdrawn and the other refused for reasons relating to the applicants’ failure to enter into a Section 106 agreement to secure the dwelling as a local needs affordable housing unit in perpetuity, given the policy constraints on new residential development outside the principal built form of the settlement.

The claim was brought on three grounds:

1. Inadequate Reasoning;
2. Irrationality;
3. Apparent Bias.

The Council conceded the claim and consented to judgment on the basis of Ground 1.

The Claimant argued that the Council had failed to provide reasons for its planning decision, despite its approval running contrary to the officer’s recommendation.

The application had been called in by a councillor and, when at committee, members had not demonstrated that the proposed development complied with key Policy DM23. Policy DM23 of the Local Plan provides that residential development in villages without development boundaries (as is the case in Kentisbury, of which Patchole forms part) will be supported on allocated sites and where:

a. The site is located within the principal built form of the settlement and is not protected for any other use; or

b. The site is well related to the main built form of the settlement and provides an affordable housing focused development in accordance with Policy ST19.

There was no dispute that the proposed development was for an open market residential dwelling and therefore would not provide affordable housing and therefore would only be in accordance with Policy DM23 where the site is located within the principal built form of the settlement.

In the Officer’s Report recommending refusal, and by reference to an earlier appeal decision relating to development in Patchole where the issue of principal built form was in issue, the officer gave detailed reasons for finding that the proposed development would not be within the principal built form of the village. The Claimant argued that it was incumbent on the Planning Committee to give reasons for reaching a different view that the proposed development was within the principal built form of the settlement because:

• Whether the proposed development was within the principal built form of the settlement was determinative of whether the application was acceptable in principle;
• The Committee were departing from the judgment made by the officers, which was itself supported by detailed reasoning;
• There was guidance (albeit non-statutory) which suggested that the Council’s approach to greenfield land on the edge of the settlement was that it would not be within the principal built form of the settlement for the purpose of Policy DM23;
• The approach to this application raised issues of consistency with other applications in the settlement of Patchole.

Following our pre-action protocol letter, the Council accepted the duty to give reasons arose following Oakley v South Cambridgeshire DC, (approved by the Supreme Court in Dover District Council v CPRE (Kent) [2017] UKSC 79).

The decision was quashed and the Council paid the Claimant’s costs.