Smech Properties v Runnymede Borough Council

On a renewed planning appeal permission application, an identified material misdirection in an officer’s report can justify permission where it is arguable that the planning decision would not necessarily have been the same on remission. This is particularly so where the error may have been treated as a decisive factor and the committee may not have considered the issue on the correct basis. Whether alternative sites are material is a fact-sensitive matter of planning judgment. An inspector’s consideration of green-belt removal across a borough does not necessarily bear on the separate merits of a particular application. A modest costs award remains a matter for the first-instance judge’s discretion.

Smech Properties challenged planning permission granted by Runnymede Borough Council for a mixed-use development in the green belt. Patterson J identified a material misdirection in the planning officer’s report but declined to quash the permission.

Smech Properties renewed its application for permission to appeal. It challenged the judge’s exercise of discretion, the treatment of alternative sites, the effect of a local Planning Inspector’s report on the council’s Local Plan Core Strategy, and the costs order. The central question was whether any ground disclosed an arguable appeal with a real prospect of success.

Lord Justice Lewison granted permission to appeal on ground 1 only and refused permission on grounds 2, 3 and 4.

1. Material misdirection and remission. The planning officer had incorrectly stated that the residential element would enable the council to meet its five-year housing land supply. The error was material because the housing-supply issue may have been treated as a tipping point by the committee. The court accepted that an arguable issue arose whether the judge could properly refuse to quash without being satisfied that the decision would necessarily have been the same if remitted. The reasoning in Hunston Properties, referred to at paragraph 28, might be distinguishable. Permission was therefore granted on this ground.
2. Alternative sites. Whether alternative sites are material considerations is a question of planning judgment related to the facts of the particular case. This site’s proximity to a railway station and motorway, and its asserted uniqueness in Runnymede, meant that the ground had no real prospect of success.
3. Planning Inspector’s report. The Inspector had considered the wider question whether the site should be removed from the green belt. If removed, the very special circumstances test would not apply and a presumption in favour of sustainable development would arise. That was a different issue from the particular planning application, so the Inspector’s report could not have changed the council’s decision.
4. Costs. The modest proportion of the interested party’s costs awarded by the judge was well within her discretion. Permission was refused on this ground.

• Court of Appeal (Civil Division): On 28 July 2015, the renewed application for permission to appeal was granted on ground 1 and refused on all other grounds.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Patterson J identified a material misdirection in the planning officer’s report but refused to quash the planning permission.