CA-2024-001414 - [2025] EWCA Civ 927

Ms Moakes challenges the Judge’s finding that the decision was adequately reasoned. She contends that the claim for judicial review should have been allowed on the basis that the Council had failed to give express reasons for rejecting the views of NE and the Kent Downs AONB Unit in relation to the key issue of the level of harm which the proposed development would do to the AONB.

The law on the duty to give reasons is well known, and the Judge set out the guiding principles at [23] and [24]. The standard of reasoning is that set out in South Bucks District Council and another v Porter (No.2) [2004] 1 WLR 1953 at [36]. Reasons need only be given for conclusions on the principal issues in controversy. There is no obligation to give reasons for reasons.

Whilst the views of statutory consultees must be afforded great weight in the decision-making process, there is no heightened standard of reasoning just because a departure from the views expressed by a statutory consultee requires what have been described as “cogent and compelling” reasons. That phrase is a form of shorthand for the test in Porter (in which it was said that the reasons for a decision must be intelligible and adequate) and adds nothing to it. That was made clear by Holgate J in his illuminating judgment in R(Together against Sizewell C Ltd) v Secretary of State for Energy, Security and Net Zero [2023] EWHC 1526 (Admin); [2023] Env LR 29 at [106] to [114], a passage which I would wholeheartedly endorse.

Unfortunately, that has not stopped attempts to put a gloss on the test by reference to judicial observations taken out of context, which has happened again in the present case.Mr Fullbrook seized upon an observation made by Sir Duncan Ouseley in Watton v Cornwall Council [2023] EWHC 2436 at [30] that:

“a lawful and properly reasoned conclusion on the principal issues in controversy is likely to require at least some, albeit brief, consideration of the principal points raised by the objector on those issues, and reasons why they were rejected.”

Mr Fullbrook submitted that this meant that express reasons for disagreeing with the views of a statutory consultee must always be set out in the OR. However, Sir Duncan was not seeking to lay down any general principle to that effect. Had he done so, I would respectfully have disagreed. However, those remarks were not part of the decision in Watton. They were made in the context of a complaint that the decision maker had accepted the contrary views to those of a statutory consultee without explaining why they preferred those views.

It is important to note that immediately after making the observation relied on by Mr Fullbrook, Sir Duncan went on to qualify it at [31] by saying:

“of course, the nature of an objector’s important point and the way in which it was dealt with may be apparent from the nature of the debate and conclusions reached. The depth or reasoning may also depend on the nature of the opposing case put forward. Short or general objector comments are very different from opposing expert reports, equivalent in expertise, reasoning and detail to those which are preferred.” [Emphasis supplied].

It follows that the reasons for disagreement with the statutory consultee on the key points in issue may emerge clearly from reading the decision as a whole, even if they are not separately identified. The question whether it is sufficiently clear from the OR why the planning officer takes a view contrary to the views expressed by a statutory consultee is acutely fact sensitive. Some cases may require the principal issues in controversy to be addressed in greater detail than others.

In this case, as the Judge correctly identified at [101], the principal matter in controversy was the harmful impact on the AONB, although the business need for the development was also questioned by the objectors, since that was the justification for the harm which was being relied on by Mr Walters and the HICO Group. After the changes to the scale of the proposed development, NE and the AONB Unit modified their views about the degree of harmful impact, but they continued to oppose the development on the basis that it would result in significant long-term adverse impacts, whereas the second respondent said they would be moderate to slight. That difference in planning judgment arose principally from differing views on two matters, namely, the existing visual impact of the Business Park on the landscape character of the Site and surrounding area (which the objectors disregarded) and the containment of the Site by landscaping and planting, some of which was already in place.

Mr Fullbrook stressed that there is a distinction between impact on landscape character and visual impact. One of the points made forcefully by NE and the AONB Unit was that no amount of landscaping and planting could mitigate the impact of converting a “tranquil” rural open field into an industrial site. However, as Mr Walters and the HICO Group pointed out, that ignores the fact that there is already an industrial site next door to the rural open field, which would already have an adverse impact on its landscape character. As their agent said in a letter dated 25 January 2023 in response to the AONB Unit’s initial objections:

“Throughout the letter there follow numerous further references to the undeveloped, open, rural and tranquil context of the site. These numerous references fail to mention that the application site is directly adjacent to an existing industrial estate which, in itself, is the result of (several instances of) major development in the AONB. Clearly therefore, the Unit’s starting point for analysis of a development proposal of a similar nature alongside the existing industrial estate is fundamentally flawed.

It is acknowledged in the LVIA Chapter of ES that the site itself is open and undeveloped (i.e. there is no built development on it) – however it cannot be ignored that the application site is located alongside existing industrial development. Equally, it cannot be ignored that [it] must follow that the site’s character and appearance must be influenced by the adjoining land uses.”

It is obvious from reading the OR that the planning officer accepted that argument. She was entitled to do so.

As I have already mentioned, neither NE nor the AONB Unit chose to commission their own LVIA but instead criticised the LVIA relied upon by the applicant. However, their criticism was not of the methodology but of the judgments formed, and the alleged failure by the authors of the report to address considerations which were said to be relevant. For example, it was said that the LVIA failed to address points made by the objectors about tranquillity and dark skies – both of which are specific facets of the harm to the AONB. The alleged deficiencies in the LVIA were among the matters on which Ms Miller addressed the planning committee at the meeting. Again, the points she made came back to the same two critical factors, namely, the impact on landscape character of the presence of the existing industrial site next door, and the degree to which steps could be taken to mitigate that impact.

It is quite clear from paragraphs 27 to 29 of the OR that the planning officer was well aware of the difference between harmful impact to the character of the landscape and harmful visual impact. I agree with the Judge that the officer had that distinction well in mind. As Mr Giles Atkinson submitted on behalf of the Council, the officer clearly explained in paragraphs 28 and 29 why she herself reached a planning judgment which was in conflict with the forcefully expressed views of the objectors. The officer explained why she came to the conclusion that the harm to the landscape character and scenic beauty would be at a low level. It is clear to any reader that she accepted the applicant’s case that the existing Business Park (and its existing impact) was a relevant consideration when assessing the impact the development would have on landscape character.

I agree with the Judge’s assessment at [101] that the objectors from NE and the AONB Unit would have no difficulty in understanding why the OR reached the conclusions that it did on the level of harmful impact on the AONB, and thus why the planning officer’s views on the principal issues in controversy differed from theirs. The planning officer did not need to descend into further detail, let alone address specific facets of the harmful impact such as increased noise and artificial lighting. Far from being wrong in her conclusion that the decision was adequately reasoned, the judge was plainly right. This ground of appeal also fails.