Helford Village Development Company Ltd, R (on the application of) v Kerrier District Council

A planning authority must identify and properly expose all material considerations for its members’ consideration. It is not enough for an officer to treat a complex conservation issue as resolved by a simple planning condition. The authority must consider whether the condition can achieve the relevant mitigation objective, including practical difficulties of access, enforcement and land outside the applicant’s control.

The existence and weight of a material consideration are questions of law and planning judgment respectively. Relevant Government policy must be properly understood and considered. A technical defect in the summary of planning policies will not ordinarily justify quashing permission without material prejudice or a real prospect of a different decision.

The claimant sought judicial review of the defendant council’s grant of conditional planning permission for a jetty and access road at Helford Point. The development was intended to support local fishermen, improve ferry access for disabled users and regenerate the local economy, but it would cause habitat loss within an environmentally sensitive estuary.

The principal issue was whether the planning committee had properly considered how the development would stop vehicle use of the mid and lower foreshore, which was relied on as mitigation and compensation for the environmental damage. Other grounds concerned disability access, regeneration, flooding, alternative sites, health and safety, environmental information and the form of the permission.

1. Principal ground succeeded. The planning committee was required to consider the means by which the mid and lower foreshore would cease to be used, because that cessation was critical to the proposed habitat mitigation and compensation. The reports did not properly expose the practical difficulties or complexities involved. Condition 13 did not control access by fishermen or members of the public to the mid and lower foreshore. Its enforcement would not itself achieve the conservation objective. The decision therefore failed to have regard to material considerations.
2. Under section 70 of the Town and Country Planning Act 1990, the authority has a broad discretion to impose conditions, subject to the principles identified in Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759. A condition may concern land outside the applicant’s control, but the authority must properly consider whether it can achieve the intended result.
3. The relevant policy in circular 11/95 was sufficiently exposed for consideration. There was no requirement to cite the circular by name where its effect had been brought to the committee’s attention. The challenge based specifically on the wording of condition 13 therefore failed.
4. The remaining grounds failed. The material adequately addressed disabled access, the benefits to the local fishing industry, flood risk, alternative sites, health and safety and the sufficiency of the environmental statements. Alternative sites would ordinarily be material only in exceptional circumstances where there was at least a likelihood or real possibility of availability.
5. The notice failed to summarise the relevant planning policies as required by Article 22 of the Town and Country Planning (General Development Procedure) Order 1995. That defect was technical and, standing alone, would not have justified quashing because no material prejudice or real prospect of a different decision was shown.
6. A quashing order was issued in respect of the permission. The claimant was awarded 50 per cent of its costs. Permission to appeal was refused.