Batey, R (on the application of) v Boston Borough Council & Anor

A planning decision may be challenged where the officer’s report significantly misleads the committee about a material matter and the error remains uncorrected before the decision. The effect of overlooking and overshadowing is a relevant material planning consideration. Although the weight given to such a consideration is for the planning decision-maker, the matter must first be properly brought to the committee’s attention. Planning committee members may hold and express views in advance, but must retain an open mind. The question is whether a fair-minded and informed observer would conclude that there was a real possibility that the decision-maker approached the application with a closed mind.

The claimant sought judicial review of the decision of Boston Borough Council’s Planning Committee to grant New Linx Housing Trust permission to construct 32 apartments adjoining his home. Permission to apply was granted on the arguable ground that the committee had failed properly to appreciate the proposed development’s overshadowing effect. A further ground alleging predetermination was later permitted for consideration.

The claimant challenged the decision on three grounds: alleged predetermination by the committee chairman; failure to take account of overlooking and overshadowing as a material consideration; and procedural irregularity arising from the omission of an earlier letter of objection from the planning file.

1. Predetermination. The chairman’s expressed views and conduct did not establish an illegitimate predetermination. The court distinguished legitimate predisposition from a closed mind. Applying the fair-minded and informed observer test, there was no real risk that the chairman had approached the application with a closed mind. Councillors are entitled, and may be expected, to hold and express views on planning matters. The predetermination ground therefore failed.
2. Material consideration. The effect of overlooking and overshadowing was a relevant material planning consideration. The weight to be given to it was a matter of planning judgment for the committee, subject to the ordinary public law threshold. Whether a matter was legally relevant was for the court.
3. The planning officer’s report did not fairly summarise the claimant’s objection and was significantly misleading because it failed to address the overshadowing of his property. The error was not corrected by the presentation, the claimant’s oral submissions, or questions at the meeting. Drawing attention to the existence of windows did not itself explain the extent of the overshadowing. The committee therefore considered and voted on the application without having the material consideration properly brought home to it.
4. Procedural irregularity. The omission of the earlier objection letter contributed to the failure to address the overshadowing issue. Regulation 19(1) of the Town and Country Planning (General Development Procedure) Order 1995 required representations to be taken into account. It was unnecessary to decide whether the omission independently justified relief because the decision was already unlawful.
5. The planning permission decision was quashed. The claimant received costs assessed summarily at £20,000. Permission to appeal was refused.

This was a first-instance judicial review. Permission to apply was granted by Collins J on 15 October 2007. Pitchford J initially refused permission to add the predetermination ground, but that ground was admitted by consent at the hearing. The Deputy High Court Judge refused the Council permission to appeal.