Ash Parish Council, R (on the application of) v Guildford Borough Council & Anor

Under section 38(6) of the Planning and Compulsory Purchase Act 2004, the development plan is the starting point and receives priority, although material considerations may justify departure. A local planning policy is not out of date merely because it is restrictive or predates the NPPF. Its substance must be compared with the NPPF. A policy may therefore remain relevant in protecting countryside character while being out of date in imposing a blanket restriction on development. The weight given to the policy is for the planning decision-maker. A judicial review challenge to an officer’s report succeeds only where, read as a whole and in context, it significantly misleads the committee on a material matter.

Ash Parish Council sought judicial review of Guildford Borough Council’s decision to grant hybrid planning permission for up to 400 dwellings and associated open-space works on land designated as Countryside beyond the Green Belt under Local Plan policy RE4.

The officer’s report identified conflict with RE4 but advised that the policy should receive no weight because it predated and did not conform with the NPPF. The claimant argued that this advice misinterpreted the NPPF and materially misled councillors. The Council and interested parties accepted that parts of the report were unclear but argued that the report and oral advice, read together, gave the correct legal framework. The central issue was whether the committee had been significantly misled about the status and weight of RE4.

1. The claim was dismissed. The officer’s report was to be read as a whole and in the context of the oral advice given to the committee. The relevant question was whether councillors had been significantly misled about a material matter.
2. Section 38(6) of the Planning and Compulsory Purchase Act 2004 required the development plan to be the starting point and to receive priority. Policy RE4 was the directly applicable development-plan policy, and the proposed housing development breached its strict restraint provisions.
3. RE4 was partly out of date. Its blanket restriction on development beyond the Green Belt was inconsistent in part with the NPPF, but its objectives of preventing coalescence and protecting attractive countryside remained relevant. The policy therefore retained some weight, although the precise weight was a matter for the decision-maker.
4. The NPPF was a material consideration operating within, but not modifying, the statutory development-plan framework. The absence of a five-year housing land supply and the need for housing were material considerations capable of outweighing RE4 and the harm to the character of the countryside.
5. Although the report contained mixed and infelicitous passages, the committee was told that the development plan was the starting point, that RE4 applied, and that the development caused significant harm to countryside character. The report and oral advice therefore did not significantly mislead the councillors.
6. The conclusion that the adverse impacts did not significantly and demonstrably outweigh the benefits was a planning judgment which the Council was entitled to reach. Alternatively, even if RE4 should have received greater weight, the Court would have refused relief in its discretion because the decision would inevitably have been the same.

First-instance judicial review proceedings. The judgment records that permission to bring the claim was granted after an oral renewal hearing before Ouseley J on 27 June 2014.