1st June 2018
Thrings and No5 Chambers have won a High Court case on behalf of a resident – supported by local objectors – that may stop the controversial expansion of a 52-bed Cedar Care home in Bath.
The judgment underlines the importance of providing sufficient evidence to support material considerations, but also reinforces the case law principle that: where a matter of ‘public importance’ the scale of a project does not impede the duty to give reasons.
Associate planning solicitor at Thrings, Ros Trotman, and Leanne Buckley-Thomson of No5 Chambers, represented the claimant – a local resident objecting to the development within a conservation area and World Heritage site.
Cedar Care Homes had sought planning approval for a replacement two-storey block and additional two-storey extensions to the south and east sides of the Grade II listed property. Deeming the proposal to be of particular local importance, councillors called for a committee decision.
On 20 September 2017, Bath and North East Somerset Council’s committee resolved to grant planning permission and listed buildings consent for the substantial expansion of the four-storey Georgian building.
The planning officer had recommended that the application be refused on the grounds that the development contravened local planning policies. In their view it would cause serious harm to the character and setting of the listed building, impact the character and appearance of the conservation area and wider World Heritage site and amounted to ‘overdevelopment’.
The planning committee was told that the recommendation followed a previous refusal of a similar application by the care home group in 2015. The officers advised that the differences between the previously refused scheme and the current one were marginal and did not improve the overall scale and design of the building or materials used. “It would therefore appear that no genuine attempt has been made to overcome the reasons for the earlier refusals” (planning officer’s report).
Despite those recommendations and objections from 19 members of the public and the Bath Preservation Trust, the committee approved the application by six votes to four and without any site visit having taken place.
The arguments presented by the planning committee in favour of the development included that care homes, in order to remain viable, need to become larger operations and therefore the extension was necessary to ensure this viability and to safeguard jobs. At the High Court, however, His Honour Judge Cotter QC found there was no evidence to support these arguments, instead concluding that “the seeking of greater profit does not mean that an existing enterprise is not and will not remain profitable” particularly when “it has been successfully operating for 15 years”.
As a result, the judge found the decision of the committee to be irrational and ruled to quash it. The matter will now be sent back to the committee for redetermination.
Particularly noteworthy in the judgment was the acknowledgement that a duty to give reasons applied despite the scale of the development. Since the official removal of the duty from legislation in 2013, a series of cases reintroduced the principle into common law. Particularly significant here was Oakley v South Cambridgeshire District Council  EWCA Civ 71 which applied the duty to plans for a 3000 capacity stadium.
Being of public importance in Bath, the conservation and heritage considerations meant reasons needed to be given in the Cedar Care Homes case despite its small scale. Ultimately, while the committee did comply with the duty, when other reasons fell away as a result of insufficient evidence, the extent to which the decision could be supported as rational came into play.
Ros Trotman said: “The High Court judgment is a good result for Bath residents as it will ensure that this important planning application is re-determined on the basis of relevant planning considerations. The officer presented a comprehensive report to the committee and whilst it is always open to councillors to draw a different conclusion, this ruling serves as a helpful reminder that sufficient evidence is required when matters, like the viability of a business, are considered.”
Leanne Buckley-Thomson of No5 Barristers’ Chambers, a specialist in planning law, said: “The crux of this case is that the planning committee minutes disclose a number of considerations which councillors plainly relied upon, but for which there was no sufficient evidence submitted.
“In his judgment, His Honour Judge Cotter QC said it was impossible to identify why the committee had granted the application and as a result quashed the decision.”