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

Finally, it is contended that the Judge was wrong to find that the Council was not obliged to give reasons for departing from the decision in the Medway appeal. There is no complaint about the Judge’s identification of the relevant legal principles at [28]. She took account of the judgment in R(Kinnersley) v Maidstone BC [2023] EWCA Civ 172, upon which Ms Moakes relied. The key question, which she determined adversely to Ms Moakes, was whether the Medway case was on all fours with the present case and not distinguishable in a relevant respect.

Mr Fullbrook alleged that the Judge misinterpreted a phrase in paragraph 142 of the Medway appeal decision (“expansion of the wine industry is not a national priority”) when she treated it as merely being a rejection of the specific economic case being advanced by the appellant in the Medway appeal. He contended that it was a reference to the wine industry in general, and that this led the Judge into erroneously rejecting Ms Moakes’ case that there was a material inconsistency between the Medway appeal decision and the OR in the present case, in which the planning officer had concluded that the wine industry was “nationally important.”

Leaving aside the fact that something can be of national importance without necessarily being a national priority, the short answer to this ground of appeal is that again it involves plucking a phrase out of its context and wrongly treating it as laying down a point of principle of wider application. When one reads the Medway appeal decision as a whole, which is the correct approach, it is clear that the Judge was right for the reasons that she gave. She pointed out the differences between the two decisions at [117] to [123] of her judgment, and there is no discernible error of law in her reasoning.

In each case the ultimate question was whether exceptional circumstances justifying a major development in the AONB had been demonstrated under paragraph 177 of the NPPF. That in turn depended on whether the level of harm to the AONB caused by the proposed development (which had to be assessed by reference to the particular location and design and other relevant factors) was outweighed by a demonstrable economic need (which depended on an evaluation of the evidence of that need and the formation of a planning judgment). But that does not mean that the Medway decision was a “like” case that called for a “like” decision or for reasons explaining the departure from it.

In the Medway case the level of harm to the landscape character was found to be significant. It was also found that the proposed development would significantly detract from the site’s contribution to the scenic beauty of the AONB, whereas by contrast, the level of harm to the AONB in the present case was found to be low in both respects.

There was also a major difference in terms of the evidence of economic need in each case. As the Planning Inspector pointed out at paragraphs 113 and 114 of the Medway appeal decision, the “high level” figures upon which the appellant’s economic case depended did not allow for their critical assessment. He found that the figures did not identify national considerations in support of the proposed scheme, that the assumptions which underpinned them were not sufficiently robust, and that they did not fully reference the economic case for alternative options. This meant that (on the evidence in that case) the appellant’s case on need could not be made out. In the light of those adverse findings the Inspector concluded at [142] that he was not satisfied that a need for the scheme had been established. In context, the Inspector’s observation that expansion of the wine industry was not a national priority was not a statement of general principle, intended to be of wider application, but a reference to the appellant’s failure to identify any national considerations in support of its proposal.

By contrast, in the present case the application was accompanied by an Economic Benefits Assessment which did not suffer from any of those defects. There was also an alternative site assessment which robustly demonstrated that there was no scope for meeting the identified need outside the AONB. The Council itself had not identified any alternative sites, and it was promoting expansion of the Canterbury Business Park for viticulture in the draft local plan. The OR accepted that the economic benefits associated with the development would be significant, and that the scheme had the potential to provide the basis for further development of the viticulture industry in the district. It stated at [70] that “the development would significantly expand the nationally important viticulture industry in Canterbury, supporting the growth of two Kent businesses including Chapel Down, England’s leading and largest winemaker.” As Ms Isabella Tafur, on behalf of Mr Walters, put it in her skeleton argument, given that Chapel Down would occupy three quarters of the development and is currently responsible for over 30% of UK wine production, the Judge was right to find that the OR was entitled to refer to the proposed development in those terms.