Al Fayed, R (on the application of) v Tandridge District Council & Anor

In judicial review, a court may refuse to quash a decision despite procedural impropriety where the circumstances are exceptional, the alleged defect could not have affected the substantive outcome, and no useful purpose would be served by relief. The court must exercise caution before treating an error as harmless because that may usurp a judgment entrusted to the public authority. Objectively unjustified local fears may nevertheless be relevant to a planning decision, although the weight given to them is for the planning authority. A general need for further scientific research does not make a decision irrational where the evidence shows that the particular proposal presents no material risk. The authority must retain its own discretion, but it may obtain and rely on specialist advice without unlawfully delegating the decision.

The appellant challenged the grant of planning permission for a radio telephone base station near his property. His objection relied on possible health risks from electromagnetic radiation. The council’s process was defective: the appellant was incorrectly told that his objection had been sent to the Health and Safety Executive, relevant material was not forwarded, and the response received appeared to address a different regulatory issue.

Carnwath J held that the decision had been improperly reached but declined, in his discretion, to quash the permission. The appeal concerned whether that discretion had been wrongly exercised and whether the council had acted irrationally or unlawfully delegated its decision to the Health and Safety Executive.

1. Appeal dismissed. Schiemann LJ agreed with the judge that the council’s decision was procedurally improper and that the error entitled the court to quash the permission. There was no statutory obligation to consult the Health and Safety Executive or to forward the objection, but the response received should have alerted the council that the relevant health issue might have been misunderstood.
2. The judge was nevertheless entitled to refuse relief. The objection on radiation grounds had been reported to the committee, and the objectors’ letters were available to councillors. The evidence established that, if the Health and Safety Executive had considered the proposal, it would have reached the same conclusion, either itself or on advice from the National Radiological Protection Board. The defect therefore caused no practical harm and quashing would serve no useful purpose.
3. The court emphasised that it is usually slow to treat procedural impropriety as harmless. Doing so may improperly assume a value judgment which Parliament entrusted to the public authority. This case was exceptional because the authority had the scientific advice it properly sought, knew of the objections, and would inevitably have received the same relevant advice.
4. The further grounds failed. The council was not irrational in deciding the application before completion of continuing research, since the evidence disclosed no convincing health risk at the relevant exposure levels. Nor had it abdicated its discretion to the Health and Safety Executive: the council itself made the planning decision in light of the material it considered necessary.
5. The court did not decide whether its discretion on appeal was unfettered by the judge’s exercise of discretion, because it would have exercised any discretion in the same way. The appeal was dismissed, the order below stood, and costs were ordered in favour of the respondents as stated.

• Court of Appeal (Civil Division): dismissed the appeal from the judgment of Carnwath J dated 14 January 1999; the order below stood. Leave to appeal to the House of Lords was refused.