Becker, R (On the Application Of) v Hertfordshire County Council

In judicial review of a planning decision, the court reviews legality rather than planning merits. Officers’ reports should be read with reasonable benevolence. Intervention is justified only where advice materially misleads the committee on a matter bearing on its decision. A planning permission is construed objectively from its wording, read in context and with common sense; extrinsic material is generally excluded unless the permission is ambiguous or incorporates it. A planning condition is void for uncertainty only where it has no sensible or ascertainable meaning. On a Town and Country Planning Act 1990 section 73 application, the original permission remains a separate baseline, while the authority may impose different conditions as part of the new permission. Relief must be refused where the statutory highly-likely test is satisfied. A Broad Field permission was quashed for a material Green Belt policy misdirection, but the other challenges failed.

The claimant sought judicial review of three decisions made by Hertfordshire County Council concerning a green-waste composting operation at Blackbirds Farm. The decisions granted retrospective permission for a maturation pad at Broad Field and varied conditions governing operating hours, vehicle movements, vehicle registers and the use of compost.

The claimant alleged failures to consider amenity and highway impacts, misunderstanding of Green Belt policy, procedural unfairness, irrationality and inadequate consideration of operating hours. The council accepted that its officers had wrongly advised the committee that the Broad Field proposal was not inappropriate development in the Green Belt. The central issues were whether that error required quashing, and whether the remaining challenges disclosed material errors of law.

1. Disposition. The challenges to the two decisions under section 73 of the Town and Country Planning Act 1990 failed. The Broad Field permission, granted under section 73A, was quashed because the committee had been materially misdirected on Green Belt policy. Consequential matters were to be dealt with by written submissions.
2. Planning review. The court cannot substitute its view on planning merits. Officers’ reports are read with reasonable benevolence and local knowledge in mind. The question is whether the report materially misled the committee and whether the error might have affected the decision. The reports and decisions here adequately addressed the vehicle and amenity objections, and the committee was entitled to reject the recommended operating-hours condition.
3. Construction. The new vehicle condition restricted HGV lorry movements, not tractors or other vehicles merely because their weight exceeded 7.5 tonnes. The original operating-hours condition concerned the permitted composting operations and did not prohibit empty HGVs leaving the site early in the morning. The replacement condition clarified that position and controlled onward transmission of material to approved maturation pads.
4. Section 73. A section 73 application concerns the conditions subject to which a new planning permission should be granted. The original permission remains intact and available as a baseline. The authority may impose a different condition, or a package of different conditions, even where the application sought variation of only one condition.
5. Other grounds. Extending the land-use condition from Blackbirds Farm to the Blackbirds Farm enterprise was lawful in context. It did not alter output and other conditions controlled movements and noise. Re-consultation was unnecessary because the change did not alter the extent of the farm, permitted output or the substance of the issues already raised. The statutory remedy bar would in any event have applied if it were highly likely that the outcome would not have been substantially different.

The judgment does not state an appeal from an earlier decision. Permission to bring the judicial review claim had been granted by a deputy High Court judge on 4 April 2018.