R v Selby District Council, Ex parte Oxton Farms

A planning officer advising councillors must keep in mind the statutory requirement to determine a planning application in accordance with the development plan unless material considerations indicate otherwise. The report must be assessed fairly and as a whole. It should not be construed as a statute or subjected to excessive textual analysis.

Judicial review will not normally be justified by imperfections of presentation. Intervention may be warranted where the report’s overall effect significantly misleads the committee about a material matter and the error remains uncorrected before the decision. Development plan policies must be read together. The realistic availability of housing land and the implementation of one plan policy may constitute exceptional circumstances under another policy.

The appellants owned land adjoining a site at Roman Road, Tadcaster. Selby District Council granted planning permission in 1994 for 23 dwellings, garages and an access road. The site lay outside the settlement’s defined built-up limits.

May J refused the appellants’ application to quash the permission. They appealed, principally contending that the planning officer’s report had inadequately or misleadingly addressed the development plan and the council’s duties under sections 54A and 70(2) of the Town and Country Planning Act 1990. They also challenged the rationality of the assessment of available housing land and the proposed access.

The central issue was whether the report, read fairly and as a whole, adequately advised the planning committee about the statutory and policy framework within which it had to decide the application.

1. The appeals concerning the 1994 permission were dismissed unanimously. Pill LJ delivered the leading judgment. Judge LJ agreed, and Butler-Sloss LJ agreed with both judgments. The planning officer’s report was comprehensive, fairly presented the relevant facts and policies, and sufficiently advised the committee about the governing statutory framework.

2. Per Pill LJ, policies in a development plan must not be considered in isolation. Policy HSG 5, restricting development outside existing built-up limits, had to be read with policy HSG 1, which provided for planned housing provision. An attempt to implement HSG 1 could rationally constitute an exceptional circumstance contemplated by HSG 5. Alternatively, the same considerations were capable of justifying departure from the plan under section 54A of the Town and Country Planning Act 1990.

3. The planning officer was entitled to assess whether land was genuinely and realistically available for development. Most permitted land was controlled by the appellants, one major site would not be developed during the plan period, and recent completion rates were low. The grant of permission was capable of making a rational contribution towards the assessed housing requirement even though it could not meet the whole requirement.

4. The site-specific matters considered in the report, including access, drainage and effects on the surroundings, were material considerations for section 70(2). They were not presented as independent reasons under section 54A for departing from the development plan. The council was also entitled to reach a planning judgment different from that of the county council and to approve the proposed access road.

5. Per Pill LJ, a planning officer must keep the statutory test in mind and provide clear and fair advice. A report is nevertheless not to be construed as though it were legislation. Its overall fairness must be assessed in context, including the opportunity for further advice and debate at the committee meeting and members’ expected working knowledge of the statutory test.

6. Judge LJ added that a challenge based on the contents of a planning officer’s report will not normally merit consideration unless the report’s overall effect significantly misleads the committee about material matters and the error remains uncorrected before the decision. The related appeals concerning the 1992 permission were dismissed by consent without consideration of their merits. Leave to appeal to the House of Lords was refused.

1. Court of Appeal: The appellants’ appeals against May J’s refusal to quash the 1994 planning permission were dismissed unanimously. Related appeals concerning the 1992 permission were dismissed by consent without consideration of their merits.
2. High Court, Queen’s Bench Division: May J refused to quash the planning permission granted in 1994. He quashed an earlier permission granted in 1992.