Planning permission was refused for application P/58/19/PL. The decision was taken by the Development Control Committee (DCC) and was contrary to the advice of Officers from Arun District Council, West Sussex County Council (as Highway Authority) and the Council’s appointed Highways Consultant. In deciding the subsequent appeal, the Inspector has concluded that the Council acted unreasonably in refusing planning permission and has awarded costs against the Council.
This award follows an award of costs for BE/69/19/OUT, Y/103/18/PL & EP/148/20/PL; all of which were refused planning permission contrary to the advice of Officers. Costs of £11,400 were paid from the Department budget for BE/69/19/OUT and a Supplementary Estimate of £33,000 was agreed at Cabinet on 11 January 2021 for Y/103/18/PL & EP/148/20/PL.
A further Supplementary Estimate is now sought to pay these further costs as the Department budget is unable to accommodate these significant additional payments.
The Chair invited the Director of Place to present his report. He explained that planning permission for application P/58/19/PL had been refused by the then Development Control Committee contrary to the advice of Officers from this Council, West Sussex County Council and the Council’s appointed Highways consultant. In deciding the subsequent appeal, the Inspector had concluded that the Council had acted unreasonably in refusing planning permission and had awarded costs against the Council. This report sought a supplementary estimate of up to a maximum of £26,000 to settle that award of cost.
The Chair then invited questions. One Member, commenting on the Planning Inspector’s decision, asked whether the Council would have fared better if it had provided more photographic evidence and he asked how well the Council had performed in providing sound evidence for the appeal. In response, the Director of Place could not confirm if any specific photographs had been provided as part of the evidence submitted (but would confirm this outside of the meeting) but he did confirm that plentiful evidence had been provided to the Inspector and he invited Members to learn from what the Inspector had confirmed in Paragraph five of the decision letter, which was read out as follows:
‘Committee Members are not bound by this advice, and I accept that they have important local knowledge. However, in this case the extensive professional evidence from both main parties prior to the determination of the application indicates that this application should have been permitted. Furthermore, as can be seen in my main decision, I have not been presented with evidence at appeal which leads me to disagree with the recommendations of these professionals at the application stage. Therefore, this application should clearly have been permitted. Consequently, refusing the application on this basis is unreasonable behaviour.’
He concluded that, though Members had the right to make a decision that was contrary to an Officer’s recommendation, this had to be done in a reasonable manner and the Planning Inspector had come to the view that the decision taken was unreasonable. Further confirmation was sought in terms of where the fault for this decision laid and whether the appeal had been defended robustly enough. The Director of Place was asked if after consulting the appeal paperwork to circulate to all Committee Members his response regarding the inclusion of photographs.
Another Member asked for clarification on whether the report concerned a single application or multiple applications, and how the figure of £26,000 had been established as settlement negotiations were still on-going. Concern was expressed as to whether such negotiations could be weakened on the Council’s side as it had publicly declared a maximum figure it would be prepared to settle at. The Director of Place confirmed that this report related to one application [P/58/19/P] and that a figure had been set although Officers were still in discussion with the appellant around agreement on what the reasonable costs associated with the reasons for refusal were. The Member, having been given the right to respond by the Chair, suggested that the wording in the recommendation be amended so that it was clear that it related to just one planning application. Concern was expressed that confirming an award sum in a public setting was ‘perhaps declaring the Council’s hand’ and could weaken Officers’ power of negotiation. A suggestion was made as to whether this item should be deferred until further evidence gathering had taken place.
The Director of Place explained that the costs discussed in the report were a debt because the Council’s actions had been deemed to be unreasonable. He urged Members not to defer this matter to the next meeting of the Committee as the Council would run the risk of being legally challenged for not meeting its debt. A Member spoke about there being lessons to be learnt by Officers and Members of the Development Control Committee in accepting Officer advice and ensuring decisions made were robust enough to stand up to inspection.
The Interim Monitoring Officer outlined the awarding of costs process for Members’ clarity confirming that when a Planning Inspector made a decision that costs should be awarded the amount was not quantified at that stage but agreed through subsequent negotiation which, if unsuccessful, returned for determination. He acknowledged that publicly agreed budgets could pose a risk to negotiations but also indicated to the appellant that that was all the money available, and that there might be the case to hold some of these type of discussions in the exempt part of the agenda. The Director of Place confirmed that this was an upper estimate but as correspondence with the appellant was still ongoing was reluctant to give further details in the meeting.
A non-Committee Member raised possible contradictions within the Planning Inspector’s written decision which could have suggested the need for a judicial review but that the Council’s Solicitor was not asked to explore this and only considered the issue of appropriate assessment which was not an issue when the planning application went to the Development Control Committee and was not discussed. The Director of Place explained that he had believed a judicial review, whether a decision maker had got something wrong in law sufficiently that the decision be substantially flawed, was not justified. Legal advice had been sought which confirmed there were no reasonable grounds to pursue a judicial review and that this had previously been explained separately to the Member.
In response to the Chair, the Interim Group Head for Corporate Support confirmed that a figure did need to be set as the report was budget related and the budget would need to be regularised. In concluding the discussion, the Chair suggested that these matters be dealt with under Exempt business going forward.
Councillor Roberts then proposed the recommendation which was then seconded by Councillor Cooper.
RECOMMEND TO FULL COUNCIL
That approval be given to a retrospective supplementary estimate of up to a maximum of £26k to settle the award of costs in respect of application P/58/19/PL (equivalent to a Council Tax Band D of £0.42) in order to regularise the budget position.