Privett, R (On the Application Of) v Gravesham Borough Council

In assessing whether redevelopment of previously developed land complies with Green Belt policy, openness concerns more than visual impact. It includes the extent of built-on land and may be affected by intensified use. Footprint is not the sole measure: bulk, height, mass and prominence may also matter.

A planning officer’s report is read in context and receives broad interpretative latitude. However, it is unlawful where a significant error or omission gives decision-makers a misleading picture and diverts them from the proper line of inquiry. In an omissions case the claimant must show that the report, read in context, was significantly misleading. Relief may still be refused if the outcome would very likely have been the same, but that discretion was not justified where the planning judgment remained genuinely uncertain.

The claimant sought judicial review of the defendant local planning authority’s grant of planning permission to BP Oil UK Limited for a petrol filling station, restaurant and drive-through facility on a previously developed site within the Green Belt.

A previous permission had been quashed by consent after the authority accepted that it had not properly applied the Green Belt policy tests. The renewed permission was challenged on four grounds, principally that the planning officer’s report misstated or omitted material matters relevant to openness, including hardstanding, bulk, mass, prominence and intensification of use.

The central issue was whether the report significantly misled the Regulatory Board so that it was diverted from the proper inquiry required by the applicable Green Belt policy.

1. Ground 1 succeeded. The concept of openness under bullet point 6 of paragraph 89 of the NPPF concerns the extent to which land is kept free from built form and intensified use. It is not confined to visual intrusiveness. A comparison must be made between all built-on land before and after development. Footprint is not the sole touchstone; bulk, height, mass and prominence may also be relevant.
2. A planning officer’s report is addressed to a knowledgeable readership and is not a statutory instrument or a straitjacket. The report merits broad interpretative latitude. Nevertheless, an omission may make a report significantly misleading where, read in context, it inferentially diverts decision-makers from the lines of inquiry and reasoning they should have pursued.
3. The report quantified the building footprints but failed to quantify hardstanding and green-space areas. Its suggestion that the existing and proposed hardstanding were broadly similar created a misleading impression. The evidence showed that green areas would fall by about 50 per cent and hardstanding would increase by about 40 per cent. The Regulatory Board was likely to have been influenced by the report’s comparative statement, and the error was material.
4. The failure expressly to address bulk, mass, prominence and intensification did not, in the context of the report and the information available to the Board, significantly mislead it. Those matters were either addressed through scale and physical dimensions or were available from the application, plans, photographs, presentations and site inspection. The omission of the below-ground tanks was likewise immaterial because the Board knew their location, approximate dimensions and subterranean character.
5. The reference to historic planning permissions was not shown to have diverted the Board from a proper inquiry. The court therefore rejected grounds 2, 3 and 4.
6. It was not established that the outcome would very likely have been the same without the error. The planning judgment was genuinely uncertain. The claim succeeded on ground 1 alone, and the planning permission dated 29 July 2015 was quashed. The claimant’s costs were limited to £35,000, and permission to appeal was refused.

The judgment records that an earlier planning permission for the development had been quashed by consent after judicial review proceedings. The present claim was determined at first instance in the Administrative Court. Permission to appeal was refused, with an application to the Court of Appeal required within 21 days.