Butler, R (On the Application Of) v East Dorset District Council (007) Ltd

In planning judicial review, an officer’s report must fairly inform the planning committee about material matters. A heritage policy requiring assets and their significance to be conserved is breached where development causes harm to significance, even if the harm is less than substantial or temporary. A policy requiring renewable-energy proposals to avoid harm to heritage assets is not satisfied merely because adverse impacts have been minimised.

As a general rule, the decision-maker must determine whether the proposal accords with the development plan before weighing material considerations against any departure. Where the committee has been materially misled about those matters, relief will not be refused merely because it might have reached the same decision.

The claimant sought judicial review of East Dorset District Council’s grant of planning permission for a temporary solar photovoltaic farm. The site was close to designated heritage assets and within the setting of a conservation area, a listed tower and a registered park and garden.

The challenge alleged delay and procedural defects, misinterpretation of development-plan policies HE1 and ME5, failure to comply with the statutory development-plan duty, failure to provide an environmental-impact assessment statement of reasons, and unlawful condition wording. The central issues were whether the officer’s report materially misled the committee and whether the identified errors required the permission to be quashed.

1. The claim was permitted to proceed on all five grounds. The claim form had been filed within the six-week planning period under CPR 54.5(5). Collins J had granted permission on all pleaded grounds under CPR 54.15, and the defendant suffered no relevant prejudice.

2. A planning officer’s report must be read fairly and as a whole. The court must not substitute its planning judgment for that of the committee. However, judicial review is available where the report significantly misleads the committee about material matters, or proceeds from flawed logic.

3. The report identified less than substantial harm to the significance and settings of heritage assets, yet advised that the proposal accorded with policy HE1. That was a material misinterpretation. A requirement that heritage assets and their significance be conserved and protected means that harm is not permitted merely because it is less than substantial or temporary. The approximately 30-year duration did not alter the policy’s meaning.

4. Policy ME5 required renewable-energy apparatus to avoid harm to the significance and settings of heritage assets. That criterion was not addressed, although the report had identified such harm. Minimising adverse impacts to an acceptable level did not satisfy a separate criterion requiring avoidance of harm.

5. Section 38(6) of the Planning and Compulsory Purchase Act 2004 generally requires the decision-maker to decide whether the proposal accords with the development plan. That conclusion may be implied from a fair reading of the report, but here the report left substantial doubt about whether the proposal accorded with the plan or conflicted with it but was justified by material considerations.

6. The errors were material. The development plan has statutory priority, and the committee could not properly weigh the public benefits without understanding the nature and extent of the departure from policies HE1 and ME5. It was not highly likely that the permission would have been granted had the committee been correctly advised. The permission was therefore quashed under section 31(2A) of the Senior Courts Act 1981.

7. Ground 4 did not require a separate order because the permission was already being quashed and the Council would have a further opportunity to comply with regulation 24 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011. The challenge to the condition “tailpieces” would not independently have required quashing, since they could have been excised, but the court indicated that such wording should not be used for matters capable of materially affecting environmental impacts.

First-instance judicial review decision. The planning permission was quashed on grounds 1, 2 and 3.