Successful challenge to storage facility development

Cherwell District Council have consented to quash their decision granting permission for a container storage facility on a farm outside the village of Milcombe on the grounds that they failed to give reasons for their decision contrary to the recommendations of a planning officer.

Cherwell District Council granted approval in August 2024 for a container storage facility on the site of an existing poultry shed outside the village of Milcombe in rural Oxfordshire. This decision followed two previous Council decisions in January 2022 and November 2023 to refuse permission for applications (with negligible adjustments) for a container storage facility on the same site. The planning officer recommended refusal for the third application on the same grounds as the first two – a lack of adequate justification for a development of this scale in a “geographically unsustainable” rural location, as well as the negative impact on the rural character and appearance of the area.

The officer found that the site was too far from the village of Milcombe to justify a development which had very limited potential for job creation (the containers would be self-storage) nor would its financial benefits reach the community. Although it was asserted that the development would function as “farm diversification” no adequate reasoning was given for this claim. Not only was the function of a storage facility completely removed from any kind of agricultural activity, in replacing a poultry shed the development would negatively impact existing agricultural production.

The grounds for the challenge was the breach by the councillors of their common law duty – and their own Code of Conduct – to give reasons for the decision to approve the application contrary to the recommendations of the planning officer. This duty arose because, as in the case of Oakley v South Cambridgeshire DC (approved by the Supreme Court in Dover District Council v CPRE (Kent) [2017] UKSC 79), a duty to give reasons can arise where the development will have a significant and lasting impact on the community, where there is departure from development plan policies, and where there is disagreement with the recommendations of an officer.

The Council were required to make their determination in accordance with their development plan. According to the Cherwell Local Plan 2011-2031 and government guidance, the planning officer had in detail outlined the lack of “exceptional circumstances” to justify a development of such scale on a rural site as well as why the proposal did not meet the requirements of “farm diversification”. The councillors were thus required to justify their decision that there were exceptional circumstances and that the proposal met the requirements for diversification. The Council did not provide reasons for going against their own previous decisions when there were no material differences between the separate applications and officer recommendations.

A pre-action protocol letter for an application of judicial review challenging the decision was sent to the Council in August 2024 and the Council agreed to quash its legally flawed decision. The Council was ordered to pay the Claimant’s costs of the proceedings.