Cathco Property Holdings Ltd, R (on the application of) v Cygnor Gwynedd Council & Anor

In judicial review of a planning permission, an officer’s report must properly identify and explain the material planning considerations relevant to the application. An emerging policy cannot be given little or no weight merely because it has attracted objections; the nature and substance of those objections must be considered. A planning judgment on need or sequential site selection must be based on proper evidence, or the report must explain that the conclusion is the officer’s own judgment and identify its basis. An officer’s report need not be exhaustive, but it must sufficiently inform committee members and enable interested persons to make meaningful representations.

The claimant challenged the Council’s grant of planning permission for the extension and redevelopment of an out-of-town retail site at Finneys near Bangor. The claimant operated, and proposed to extend, a town-centre retail store and alleged that the Council had failed to consider relevant emerging policy, retail need, the sequential approach, the impact on the town centre and the proper scope of planning conditions.

The permission followed an earlier challenged permission and reconsideration after the publication of MIPPS 02/2005. The central issues were whether the officer’s report materially misled the committee and whether the committee had been given a proper basis for assessing the relevant planning considerations.

1. Claim allowed. The planning permission could not stand because the committee had been materially misled about the weight to be given to emerging policy D26. The officer wrongly stated that the Council had resolved to give weight only to policies attracting no objections and that objections meant little or no weight could be attached to D26. The nature of the seven objections did not undermine the policy’s approach to out-of-town retail development. (paras [18]-[21])
2. The officer’s advice on retail need was inadequate. The evidence relied on did not establish an overall need for additional comparison-goods floorspace. Material relied on from other retail developments concerned different types of development and was immaterial or largely immaterial to the issue. A planning judgment must be based on proper evidence. If the officer relies on personal planning expertise, the report should make that clear and identify the reasons for the conclusion. (paras [23]-[31])
3. The same principle applied to the sequential assessment. It was insufficient simply to assert that the evidence demonstrated that no suitable town-centre unit was available. The report should have stated, briefly but sufficiently, the basis of that planning judgment. The observations in Oxton Farms v Selby District Council and R v Mendip District Council ex parte Fabre were consistent with that approach: reports need not be exhaustive, but they must inform the committee adequately and disclose the basis of relevant advice. (paras [32]-[35])
4. The proposed condition limiting part of the development to bulky goods was also approached on an erroneous basis. Existing unrestricted use rights could not determine the extent of a condition attached to the new permission. The committee also needed to assess whether the earlier 1996 permission was likely to be implemented, since it was a relevant fallback position and might affect the appropriate conditions. (paras [36]-[39])
5. The claim succeeded and the planning permission was quashed. The Council was ordered to pay costs of £46,434.64. (paras [40], [48]-[52])

This was a first-instance judicial review. The judgment records that an earlier permission for the same development had been challenged after permission for judicial review was granted by Richards J, leading to a further application and reconsideration. No appellate decision is stated.