Smech Properties Ltd v Runnymede Borough Council & Anor

In judicial review of a planning permission, the court may refuse to quash a decision affected by a material misdirection only where it is inevitable that the lawful decision would have been the same.

On an appeal limited to review, an appellate court asks whether the first-instance judge had legitimate and proper grounds for the conclusion reached. It may give weight to that judge’s evaluation of written material, particularly where the judge has relevant expertise and a fuller view of the case.

Before adoption of a local plan, housing need must be assessed by reference to full objectively assessed need. Under National Planning Policy Framework paragraph 87, a housing shortfall is relevant but does not itself establish very special circumstances for Green Belt development. Its scale, planning context, constraints and the site’s contribution must all be assessed.

The appellant, which owned nearby land, sought judicial review of the Council’s grant of planning permission for mixed-use development on a former industrial site in the Green Belt. The Council’s Officer Report incorrectly advised that housing on the site was necessary for the Council to demonstrate a five-year housing land supply.

Patterson J held that the error materially misled the planning committee, but refused to quash the permission because the committee would inevitably have granted it if properly advised: [2015] EWHC 823 (Admin). Permission to appeal was confined to that exercise of remedial discretion.

The central issue was whether the judge was wrong to find that a properly advised planning committee would inevitably have reached the same decision.

1. Appeal dismissed. Sales LJ, with whom Briggs and Tomlinson LJJ agreed, held that Patterson J was entitled to refuse relief despite the material error in the Officer Report.
2. Under the principle in Simplex G.E. (Holdings) v Secretary of State for the Environment, relief could be withheld only if the planning committee would inevitably have made the same decision on correct advice. The judge correctly applied that constrained test.
3. The appeal was governed by CPR Part 52.11 as a review, not a rehearing. The Court of Appeal therefore had to decide whether the judge had legitimate and proper grounds for her conclusion. A first-instance judge’s evaluation of written evidence may properly carry weight. That was especially so here because the judge had planning expertise, a two-day hearing and a fuller understanding of the case.
4. The judge correctly treated the Council’s full objectively assessed housing need, rather than the lower and unadopted figure in its draft local plan, as the relevant starting point. St Albans CC and DC v Hunston Properties Ltd established that position. It also showed that a housing shortfall does not automatically amount to very special circumstances under National Planning Policy Framework paragraph 87. The decision-maker must assess the shortfall’s scale and wider planning context, including development constraints.
5. On the facts, the judge was entitled to reject the contention that 200 dwellings were insignificant. The housing need was pressing, the district was heavily constrained by Green Belt designation, and the previously developed site was particularly suitable because of its railway connection and limited additional effect on openness. Those matters provided proper grounds for finding that a properly advised committee would still have granted permission. The judge’s reference to the ordinary presumption in favour of sustainable development did not show that she had overlooked its disapplication to Green Belt land.

• Court of Appeal (Civil Division): dismissed the appeal and upheld the refusal to quash the planning permission: [2016] EWCA Civ 42 .
• High Court, Administrative Court: Patterson J found that the Officer Report materially misled the planning committee, but exercised discretion to refuse to quash the permission because the same decision was inevitable on correct advice: [2015] EWHC 823 (Admin) .