The High Court in Visao Ltd v The Secretary of State for Housing, Communities And Local Government [2019] EWHC 276 (Admin) has re-emphasised the important weight of statutory consultees and their expertise coupled with the legal requirements upon decision makers, should they depart from such expert views.
The Facts
In November 2017, Chiltern District Council refused a planning application for four additional dwellings together with extensions to two existing dwellings. A key reason for refusal, both relevant to the court proceedings and not unusual in developments of this kind, was the adequacy of shared accessway to the highway. Specifically, the width of such accessway should enable two vehicles to pass to avoid queuing on the highway.
At the time of the refusal decision, the developer had submitted to Buckinghamshire County Council a revised drawing illustrating an increased width for part of the accessway. Although such drawing was not considered by either council on the planning decision, the county council subsequently reviewed and advised that such revised drawing addressed their highway concerns and was satisfactory.
Accordingly, the developer appealed the refusal, relying upon the revised drawing and the county council’s approval to demonstrate that the highway safety concerns had been overcome.
The planning inspector dismissed the appeal, finding that the width of the accessway was inadequate on highway safety grounds. The developer judicially reviewed the inspector’s decision on two grounds: (1) the inspector failed to consider the revised drawing; and (2) if the inspector had considered the revised drawing then he failed to provide clear and cogent reasons for departing from the expert advice of the county council.
The Decision
The High Court allowed the judicial review and quashed the inspector’s decision.
On the first ground of challenge the inspector had provided a witness statement, supplementing the appeal decision, in which he confirmed that he considered the revised drawing in his decision. However, the judged noted that the court should be cautious in admitting into evidence supplemental witness statements by decision makers in planning matters, and concluded that:
“In my judgment the decision letter itself, read in a fair, reasonably flexible and objective way, leads the reader to conclude that the inspector did not have regard to [the revised drawing]. Given that the decision letter is a public document on which the parties and others were entitled to rely, I base my analysis on my reading of the decision letter in preference to the statements made in the inspector’s witness statement”.
On the second ground of challenge, the judge noted the legal requirements of decision makers when considering expert comments by statutory consultees by saying that a:
“decision-maker should give the views of statutory consultees, in this context the ‘appropriate nature conservation bodies’, ‘great’ or ‘considerable’ weight. A departure from those views requires “cogent and compelling reasons”.
Although a moot issue, given the decision on the first ground of challenge, and self-evident, the judge found that cogent and compelling reasons had not been given by the inspector for departing from the expert comments of the county council on highways.
Lesson
The expert opinions of statutory consultees will carry great and considerable weight in the planning judgement of a decision maker. It is important that should such a decision maker decide to depart from such expert opinion, then they must provide cogent and compelling reasons within their written decision.
