Bishop's Stortford Civic Federation v East Hertfordshire District Council & Ors

Judicial review of a local authority planning decision is not established merely because an executive councillor addressed the planning committee after participating in a related land transaction. Unless the constitution or another governing instrument expressly prevents attendance, a councillor may, with the committee’s permission, attend and speak, subject to any prejudicial interest. The court should assess a collective committee decision by the general tenor of the debate and the impact of remarks, not by forensic analysis of individual speeches or motives. A direction in an officer’s report that a factor is to receive no weight may adequately tell members to disregard it. Under the Town and Country Planning (Environmental Impact Assessment) Regulations 1999, publication duties concern substantive environmental information. An addendum merely updating policy and not affecting the planning merits is outside that scope. A technical procedural breach without substantial prejudice does not warrant relief.

The Federation sought judicial review of the Council’s decision to grant planning permission to companies acting for Henderson for a mixed-use redevelopment of land in Bishop’s Stortford. The Council had previously entered into land and overage arrangements with Henderson.

Permission was granted on two grounds. The first concerned remarks made by an executive councillor at the planning committee meeting which approved outline permission. The second concerned the failure to invite representations on additional documents submitted after the National Planning Policy Framework was issued. The documents were available for inspection at the Council’s offices but were not uploaded to its website. The central issues were whether the councillor’s intervention affected the committee’s decision and whether the consultation failure breached procedural fairness or regulation 22 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, corresponding to regulation 19 of the 1999 Regulations.

Judicial review refused. The Council’s decision was not vitiated by the councillor’s intervention, and the later failure to consult on the additional documents caused neither unfairness nor a breach of the applicable environmental impact assessment requirements.

1. Attendance and participation. Unless the Council’s constitution or another governing instrument expressly prevents attendance, a councillor may, with the planning committee’s permission, attend and address it. The qualification is that a councillor with a personal prejudicial interest cannot participate: R (Richardson) v North Yorkshire County Council [2003] EWCA Civ 1860; [2004] 1 WLR 1920. That limitation did not apply to Cllr Tindale. The approach in R (on the application of Lewis) v Redcar and Cleveland BC [2009] EWCA Civ 3; [2009] 1 WLR 1461 supported participation by a leading member involved in planning policies or proposals.
2. Effect of the remarks. Motive was irrelevant. The legal question was whether the remarks affected the committee’s decision. The court assumed, for argument, that the earlier land deal was not a material planning consideration. Retail leakage and the developer’s ability to deliver the scheme were relevant matters. A local authority’s landowner interests had to be disregarded, although the possible relevance of a past transaction was left undecided: R (Midcounties Co-operative Ltd) v Swindon BC [2013] EWHC 3775 (Admin). The officer’s direction that the land arrangements should receive no weight was sufficient to tell members to disregard them. Excessive textual analysis of planning reports was inappropriate: R (Morge) v Hampshire County Council [2011] UKSC 2; [2011] 1 WLR 268. In assessing a collective decision, the general tenor of the debate mattered more than individual views or precise terminology: The King v London County Council [1915] 2 KB 466; R v Exeter City Council ex. p J L Thomas [1991] 1 QB 471. The committee was experienced and trained, and the chair’s reminder to decide on planning grounds was adequate. There was no reasonable basis for concluding that the remarks affected the result.
3. Judicial restraint. Courts should exercise prudence when examining debates of democratically elected planning committees. The caution applied to expert tribunals and planning inspectors was relevant: AH (Sudan) v Secretary of State for the Home Department [2007] UKHC 49; [2008] 1 AC 678; Wychavon District Council v Secretary of State for Committees and Local Government [2008] EWCA Civ 692; [2009] PTSR 19.
4. Consultation and environmental information. The documents were placed on the planning file and the National Planning Policy Framework did not alter the planning assessment. The court found no unfairness. Regulation 19 of the Town & Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 applied to further information and other substantive information relating to the environmental statement. The addendum was merely an updating exercise and did not contain such substantive information, so the regulation was not engaged. The approach in R (on the application of Corbett) v Cornwall Council [2013] EWHC 2958 (Admin) did not apply. Any breach would in any event have been technical and caused no substantial prejudice, so relief would have been withheld: George v Secretary of State for the Environment (1979) 38 P & CR 609; Walton v Scottish Ministers [2012] UKSC 44; [2013] PTSR 51.

The claim was dismissed and judicial review refused.

Permission to apply for judicial review was granted on two grounds by John Howell QC, sitting as a Deputy High Court Judge.