Sykes v Cheshire West & Chester Borough Council

Fairness in planning consultation requires affected persons to have a proper opportunity to respond when late information fundamentally changes the proposal. A change from a members-only facility to a facility accessible to the general public was substantive, not a mere clarification. The authority could not avoid the consequences of procedural unfairness by asking the court to speculate that the committee would have reached the same decision. An officer’s report need not recite every consultation response, provided it enables the committee to understand the material issues. Noise concerns may be addressed through planning conditions, including restricted hours and a noise management plan.

The claimant, a neighbouring resident, sought judicial review of the Council’s grant of planning permission for the demolition of an existing boathouse and construction of a Community Watersports Hub. The principal challenge concerned additional information supplied to the planning committee on the day of its meeting, stating that members of the general public could use the facility. Earlier planning documents had indicated that the social and educational facilities would be for club members only.

Permission was granted on grounds concerning consultation, the treatment of noise advice, and an alleged mistake of fact. The central issues were whether the late information required further consultation, whether the officer’s report adequately addressed the Environmental Protection Team’s concerns, and whether the committee had misunderstood the nature of the proposal.

The judicial review succeeded on the consultation ground. The planning permission was quashed and the matter was remitted for a further determination on that ground alone. The noise and mistake-of-fact grounds were refused.

1. Procedural fairness. Applying the principles in R v North and East Devon Health Authority, ex parte Coughlan [2001] 2 WLR 622, R (Moseley) v Haringey London Borough Council [2014] UKSC 56, and Holden Studios v the Council of London Borough of Hackney [2017] EWHC 2823, consultation must be fair and undertaken while proposals remain formative. It must give affected persons sufficient information and time to make an intelligent response.
2. The late information did not merely clarify the proposal. It changed access from a private members’ facility to one open to the public. The change was material because noise, traffic and amenity concerns had been assessed on the basis of restricted membership. The claimant and other neighbours were therefore prime candidates for consultation.
3. The Council’s submission that the result would inevitably have been the same was rejected. The court would not speculate about how committee members would have responded after receiving fair representations. That approach would undermine the purpose of natural justice.
4. Officer’s report and noise. The report had to be read as a whole. It was sufficiently clear for the committee to understand the noise issue, and the planning permission included restricted operating hours and a requirement for a noise management plan. Ground 3(A) therefore failed. The guidance in Morge v Hampshire County Council [2011] UKSC 36 and Hill v Cornwall Council [2016] EWHC 1264 was applied.
5. The alleged mistake of fact added nothing to the successful fairness ground. The committee had been informed that the facility was public; the real defect was the absence of a fair opportunity to address the change. Ground 4 was refused.

First-instance judicial review decision. The judgment does not state any prior appellate decision.