Higham, R (On the Application Of) v Venning & Anor

A planning officer’s report must be read fairly and as a whole. Judicial review is justified where its overall effect significantly misleads the planning committee about a material matter and the error remains uncorrected before the decision. A committee may rely on the knowledge of its members and on advice and material contained in the application papers, but it must have regard to material statutory duties and planning policies. A local authority is not required to investigate an unsubstantiated assertion about a technical benefit where no genuine evidential dispute is raised. A procedural error concerning a committee substitute does not invalidate a decision where the applicable constitutional requirements were not met and no material change justifies redetermination.

The claimant sought judicial review of Cornwall Council’s decision to grant planning permission for a single wind turbine and associated infrastructure near Lanreath. He alleged that a councillor had wrongly been excluded from the determining committee, that the committee report understated English Heritage’s concerns, that the claimed electricity-generation benefit was not properly examined, and that the report failed to address Natural England’s advice and the Cornwall Area of Outstanding Natural Beauty Management Plan.

The central issues were whether the council had complied with its constitutional substitution rules, whether the report significantly misled the committee about material matters, and whether relevant heritage, landscape and renewable-energy considerations had been lawfully taken into account.

1. Claim dismissed. The councillor was not on the approved list of substitutes. The Council Procedure Rules required written notification of amendments to the list and provided that the list took effect when received and signed by the Monitoring Officer. Those requirements had not been met. The officer’s assurance that the committee would be advised of the request was not a clear and unambiguous representation that the councillor was entitled to participate. No material change in circumstances required the application to be returned to the committee: R (Kides) v South Cambridgeshire District Council [2003] 1 P&CR 19.
2. Planning officers’ reports must be read in good faith, as a whole and not legalistically. The relevant question is whether the overall effect of the report significantly misleads members about material matters and the matter is left uncorrected before the decision. The report is addressed to a knowledgeable readership, and the court should not impose an unduly demanding standard: The Queen (on the application of Smech Properties Ltd) v Runnymede BC [2015] EWHC 823 (Admin); R (Zurich Assurance Ltd trading as Threadneedle Property Investments) v North Lincolnshire Council [2012] EWHC 3708 (Admin); R v Mendip District Council ex parte Fabre [2000] 80 P&CR 500; Morge v Hampshire County Council [2011] 1 WLR 268.
3. The omission from the report of the final sentence of English Heritage’s letter did not materially mislead the committee. Read as a whole, the report identified the Grade I church, the harm to its setting, the statutory duty under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, and the need to weigh the harm against public benefits. The committee was entitled, as a matter of planning judgment, to conclude that the benefits outweighed the accepted harm. The statutory duty requires considerable importance and weight to be given to preserving the setting of listed buildings, including Grade I buildings: East Northamptonshire District Council v Secretary of State for Communities and Local Government [2015] 1 WLR 45.
4. The committee was not required to investigate the claimed electricity output. The claimant’s objection merely asserted that the figure was overstated, supplied no alternative figure or expert evidence, and did not raise a substantial evidential dispute. The separate R (Waller) v Cornwall Council proceedings concerned a different turbine and site and had been settled without findings of fact, so material from that case did not impose a duty to investigate the present application.
5. The report did not significantly mislead the committee about the Area of Outstanding Natural Beauty. Although the Cornwall AONB Management Plan was not mentioned, the development was outside the AONB, relevant landscape policies were addressed, the AONB Unit had been consulted, and the committee considered the landscape and visual effects. Reference to the omitted part of Natural England’s response would have made no difference.