Daniel, R (on the application of) v East Devon District Council & Anor

A planning authority must take into account all legally relevant considerations, including the materiality of an earlier decision on a similar application. An earlier refusal concerning a different, stand-alone scheme may properly be treated as part of the planning history rather than as a precedent governing a later application to vary an extant permission. An officer’s report must be read as a whole. Judicial review will generally succeed only where its overall effect significantly misleads the committee about material matters left uncorrected before the decision. Even an established failure to consider a relevant matter warrants quashing only where there is a real possibility that consideration of it would have made a difference.

The claimant sought judicial review of East Devon District Council’s grant of planning permission on 18 June 2012 for a variation of approved plans relating to a café and restaurant development. The permission followed an earlier permission, an unsuccessful application for a different replacement scheme, and an application under section 96A of the Town and Country Planning Act 1990 to add a condition identifying the approved plans.

The claimant alleged that the council failed to take relevant matters into account, including the earlier refusal and difficulties in implementing the extant permission, and took immaterial matters into account. The central issues were the proper treatment of the earlier planning decisions and the adequacy of the officer’s advice to the committee.

1. Relevant considerations. The statutory framework required the council to have regard to the development plan and other material considerations under section 70(2) of the Town and Country Planning Act 1990, and to determine the application in accordance with the development plan unless material considerations indicated otherwise under section 38(6) of the Planning and Compulsory Purchase Act 2004. A decision-maker must have regard to all legally relevant considerations: R (Alconbury Developments Limited) v SoSETR [2003] 2 AC 295.
2. Earlier refusal. The February 2012 refusal concerned a different, stand-alone scheme and was not a variation of the extant permission. The officer was therefore correct to explain that it did not set a precedent for the later application, although it remained part of the site’s planning history. The extant permission was the relevant precedent. The report, read as a whole, did not advise the committee unlawfully to disregard the earlier refusal. The permission was granted for five stated planning reasons, not on the basis alleged by the claimant.
3. Officer’s report. An officer’s report must be read as a whole: R v Poole Borough Council ex parte Beebee [1991] JPL 643; Oxton Farms v Selby District Council [1997] EWCA Civ 4004. Judicial review based on an officer’s report normally requires an overall effect which significantly misleads the committee about material matters left uncorrected before the decision.
4. Implementation and evidence. The advice that the original permission could reasonably be implemented, despite land-ownership difficulties, was factually and legally accurate. Construction had begun. Where written evidence cannot otherwise be reconciled, the court should accept the defendant’s account: Flattery v SSCLG [2010] EWHC 2868 (Admin).
5. Remedy and outcome. A failure to consider a relevant matter warrants quashing only where there is a real possibility that consideration would have made a difference: Bolton Metropolitan Borough Council v Secretary of State for the Environment (1991) 61 PCR 343. The grounds were rejected and the claim was dismissed.