Orange Personal Communications Services Ltd v Birmingham City Council

A planning decision may be quashed where an objectively verifiable mistake of fact materially influences the decision. A claimed fallback permission must have prospects that are real, rather than merely theoretical. A planning officer must evaluate material objections rationally, including incorporated earlier material addressing factors common to the present application. Relief may be withheld only in exceptional circumstances where the court is satisfied that the error could not realistically have affected the outcome.

Orange sought judicial review of Birmingham City Council’s decision to grant Smalldene planning permission for a lorry and construction-vehicle depot beside Orange’s telecommunications switch site. The claim proceeded on two grounds: a planning officer wrongly told the committee that an earlier, more intensive permission remained extant; and the report author irrationally discounted evidence concerning dust, particulates, vibration and accidental damage.

The council argued that any errors could not have affected the result and that the court should decline relief. The central issues were whether the errors were legally material and whether the decisions should nevertheless be upheld.

1. Material mistake of fact. The court applied the four requirements identified in E&R v Secretary of State for the Home Department [2004] EWCA Civ 49: a mistake as to an existing fact, an objectively verifiable and uncontentious fact, no responsibility on the claimant’s part, and material influence on the decision. The officer’s statement that the 1999 permission was an extant and more severe fallback permission was wrong. The permission had expired without implementation.
2. A decision-maker considering a proposed development must have regard to a realistic fallback permission for an alternative development with broadly similar planning implications. The prospect of the fallback must be real, not merely theoretical, applying the principle discussed in Brentwood Borough Council v Secretary of State for the Environment and Gray 1996 72 P&CR 61. Here there was no real or theoretical fallback. The erroneous intervention occurred during a debate focused on dust and safety and was highly material to the unanimous decision.
3. Irrational treatment of objections. The report author irrationally gave no weight to the earlier objection material merely because the proposed lorry depot differed in character from the withdrawn waste-transfer application. The current objection expressly identified the features of the earlier material that remained relevant, particularly heavy-vehicle movements along the access road and the resulting risks. The court rejected the alternative argument that there was insufficient information to make the recommendation.
4. Discretion and materiality. The development plan framework under the Planning and Compulsory Purchase Act 2004, section 38(6), and the Town and Country Planning Act 2000, section 70(2), did not make permission inevitable. Planning history, including expired permissions, could remain a material consideration. The court applied the principles in Bolton Metropolitan Borough Council v Secretary of State for the Environment and Greater Manchester Waste Disposal Authority [1990] 61 P&CR 343. There was a real possibility that proper consideration would have led to refusal or deferral for further information.
5. Judicial review was granted and the two planning decisions of 8 December 2005 were quashed.

Not an appeal. The judgment records that Collins J granted permission to apply for judicial review on 20 April 2006.