Local facilities, local plans and the importance of consultation- Danning v Sedgemoor District Council
All local planning authorities in England are required by law to have a local plan to set local planning policies in their area. These documents are applied when deciding on planning applications. Much of the consultation related activity we see around local plans revolves around their assembly, and we have seen multiple disputes and challenges revolving around them. Interestingly, this week we got a different type of dispute revolving partially around a consultation commitment within a local plan.
The decision-maker was Sedgemoor District Council in Somerset, who received a planning application for change of use for the Panborough Inn from a pub to a residential dwelling. Although the pub had once been a successful enterprise, despite multiple attempts to re-open between 2016 and 2019, it had been substantively closed since 2014.
The application was considered in November 2020, and the committee were aware that it had been a controversial process with 44 of the 45 representations made by locals being objections, mostly on the grounds that the closing of the pub would constitute a significant loss of a “vital local amenity”. Nevertheless, the application was granted, setting the stage for the hamlet of Panborough to lose its pub.
An application for judicial review was brought on three grounds. Firstly that the decision breached the Public Sector Equality Duty in s. 149 of the Equality Act, then that the decision failed to apply Policy D35 of the Sedgemoor Local Plan, and finally that the Council failed to apply Policy WED13 of the Wedmore Neighbourhood Plan.
For consultors, the ground of primary interest is the second one, that the Council failed to apply Policy D35. Policy D35 states that (emphasis added):
“The loss of existing services and facilities that meet the day to day needs of the local community will be resisted unless it can be demonstrated that:
There is appropriate alternative provision available locally; and
There is no longer a demand for the user and/or is it not viable; and
The facility is no longer fit for its intended purpose;
There is evidence of community consultation and consideration of alternative ways of delivering the service”
Claimants argued that the Officer’s Report to the committee materially misstated the policy, by omitting discussion and evidence on the third and fourth policy requirements.
Although the Officer’s Report had identified all four strands of the policy it did not specifically deal with policy requirements three and four and ultimately recommended that the application should be granted. In his witness statement, the Officer responsible for the report stated that the intention was to “expand on those points most pertinent to the determination”. With regard to the consultation sub-ground, claimants alleged that there was no evidence of relevant consultation being carried out.
In defending the application, the Council argued that the Officer’s Report properly addressed the most important criteria, as the other criteria would logically be met if the use of the building as a pub were found to be non-viable. Responding to the allegation of a lack of consultation, the Council relied on the original planning application that had been made in 2018, and subsequent calls for feedback on the products on offer and opening hours by the stalling pub.
In her judgment, Mrs Justice Steyn rejected the idea that a conclusion of non-viability would necessarily render the fourth policy requirement null and void and held that the Planning Committee should have received explicit advice on all four elements if it were to be seen to have acted lawfully. She highlighted the lack of any evidence of consultation and agreed with the claimant that the specific consultation requirement here was not met by the planning application itself- it was, she said, “intended to provide an added degree of protection for community facilities which would be absent if no more was required than making a planning application in the usual way”. In addition, the fact that the pub had asked for feedback on products and opening hours did not constitute good consultation, as it did not contemplate the permanent loss of the pub as an amenity.
For planning officers and those involved with planning, there is a lot to take away here. For those writing officer’s reports there is a reminder that all major policy points must be addressed in the report- it’s not enough to conclude that because questions over some are answered in one way, it necessarily follows that the others will also be answered in a certain manner. In addition, though it was not stressed, it’s a reminder that merely referring to a criterion is insufficient to discharge a public duty lawfully- it must be actively addressed.
The more pertinent direct consultation point is an assertion that if your local plan has an additional and specific consultation requirement attached to a certain policy, then there must have been a direct and specific consultation addressing the key points. In many ways, though it was not directly mentioned, this is a reminder of the Sheffield Combined Authority case, where the fact that a direct question on a matter was not asked proved fatal to a consultation on the expansion of that authority. Here, it was not merely enough to demonstrate that there had been some form of public engagement- a point which we would think should have been obvious.
Although in this case the pub had been substantively closed for some time, the judge stated that “the protection against loss of community facilities would be seriously eroded if a facility such as a public house were to be treated as no longer being a community facility because it had closed its doors”. She also acknowledged the potential value of consultation “The Planning committee was entitled to find on the evidence before it that the public house is not commercially viable, but that does not detract from the importance of requiring evidence of community consultation (which could conceivably give rise to innovative solutions)”.
The case provides an interesting reminder of the importance of local plans, and the need to be aware of your obligations. Are you aware of all yours?