Loader, R (On the Application Of) v Rother District Council & Anor

A planning committee’s decision is unlawful where an officer’s report significantly misleads members on a material matter. The seriousness of misleading advice depends on its context, circumstances and possible consequences.

Where an authority chooses to consult a specialist body, members must not be led to believe that the body was consulted and raised no objection when it had no opportunity to comment. Reliance on that false impression may constitute the taking into account of an immaterial consideration.

The three exceptions in paragraph 74 of the National Planning Policy Framework are disjunctive. An assessment of whether open space is surplus to requirements need not take any prescribed form. That question, and whether replacement provision is equivalent or better in quantity and quality, are matters of planning judgment reviewable only on public law grounds.

The appellant challenged the council’s grant of planning permission for sheltered apartments on land containing bowling facilities and open space, opposite a grade II listed terrace. Patterson J dismissed the judicial review claim in [2015] EWHC 1877 (Admin).

The appeal raised three issues. The first concerned the interpretation and application of paragraph 74 of the National Planning Policy Framework. The second concerned the council’s admitted failure to notify English Heritage under regulation 5A of the Planning (Listed Buildings and Conservation Areas) Regulations 1990. The third was whether the Planning Committee had been significantly misled by an officer’s statement that no comments had been received from the Victorian Society, when an attempted consultation had failed.

1. Appeal allowed on the Victorian Society ground only. The statement in the officer’s consultation summary that no comments had been received was factually accurate but significantly misleading. In context, it implied that the Victorian Society had been consulted, considered the revised proposal and chosen not to object. In fact, the consultation had been sent to a disused email address and the council had not acted on the automatic response providing a current address. The misinformation concerned a national amenity society which had objected to a similar proposal and whose views the council had deliberately sought. It was material to the committee’s assessment under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990. The unlawfulness was best characterised as taking an immaterial consideration into account. It was impossible to conclude that a properly obtained response would have made no difference, so relief could not be withheld.
2. The paragraph 74 challenge failed. Its three exceptions are disjunctive, so satisfying any one is sufficient. Neither paragraph 74 nor the corresponding development plan policy prescribes the form of an assessment showing that land or facilities are surplus to requirements. The adequacy of that showing, and whether replacement provision is equivalent or better in quantity and quality, are matters of planning judgment. The council lawfully found both that the lost facilities were surplus to requirements and that the new facilities would provide equivalent or better provision. Visual amenity and community value were either inherent in applying the relevant policies or separately considered and given due weight.
3. The admitted failure to notify English Heritage under regulation 5A of the Planning (Listed Buildings and Conservation Areas) Regulations 1990 did not independently justify quashing the permission. Regulation 5A implicitly required English Heritage to have an opportunity to express its views before the decision. Although the judge’s approach did not fully recognise English Heritage’s statutory role and wrongly disregarded the later correspondence, her conclusion was correct. That correspondence was relevant and showed that English Heritage had no favourable or unfavourable comment. The same decision would therefore have been reached had timely notification occurred.

1. Court of Appeal (Civil Division): In [2016] EWCA Civ 795, allowed the appeal only on the ground that the Planning Committee had been significantly misled about consultation with the Victorian Society.
2. Administrative Court, Planning Court: Patterson J dismissed the judicial review claim in [2015] EWHC 1877 (Admin).