Campaign To Protect Rural England, R (On the Application Of) v

A planning guidance document that is expressly advisory and has not undergone the procedures required for formal policy may still contain material considerations. Its contents do not, however, acquire special policy status, and failure to follow them does not itself establish legal error or breach of policy.

A procedural legitimate expectation requires a clear and unequivocal assurance, with its scope sufficiently certain. Planning officers retain judgment where guidance is flexible and non-prescriptive. An officer’s report must be read fairly and as a whole; courts should not interfere with planning judgment unless a material issue was omitted or the report significantly misled the decision-maker.

Confidential commercial information relied upon in preparing a report need not be disclosed as background papers where disclosure would breach confidence.

Campaign To Protect Rural England challenged Herefordshire Council’s decision to grant permission for large-scale polytunnels and seasonal workers’ accommodation. The challenge concerned the Council’s Polytunnels Planning Guide, alleged procedural legitimate expectations, the treatment of landscape and bats in the officer’s report, late publication of documents, and non-disclosure of economic information.

The Council accepted that the guide created a procedural legitimate expectation that its processes would be followed, and accepted a failure to follow paragraph 5.19. The Interested Party disputed that concession. The central issues were whether the guide imposed enforceable requirements, whether the officer’s report unlawfully failed to address material considerations, and whether the consultation and disclosure arrangements were procedurally unfair.

1. Ground 1 failed. The Polytunnels Planning Guide was expressly guidance, not policy, and had not undergone formal consultation or sustainability appraisal. The statement that it could not be attributed weight meant that the document had no special policy status; it did not mean that its contents could be ignored. Failure to comply with a passage in the guide therefore did not itself establish a breach of policy or procedure.
2. The provisions concerning economic evidence, local population effects, water audits and ecological surveys were advisory and flexible. They did not create prescriptive, exclusionary criteria or a sufficiently clear legitimate expectation that every identified step would be taken in every application. The water-resourcing arrangements in substance addressed the guide’s concerns, and the absence of a document bearing the title Water Audit was a matter of form rather than substance. No material breach was shown in any event.
3. The ecological assessment and officer’s report contained sufficient information about protected species. The objections concerning bats did not contradict the finding that no buildings on the Site supported roosting bats, and habitat for foraging and commuting bats would remain or be enhanced. Conditions could rationally secure the necessary protection.
4. Ground 3 failed. Although the report did not expressly cite paragraph 170(a) of the National Planning Policy Framework or label the landscape “valued”, it addressed the relevant landscape policies, evidence and impacts in a thorough and balanced manner. A valued landscape requires more than subjective public appreciation; some demonstrable physical attribute is required. Compliance with applicable development-plan policies could rationally justify compliance with the national guidance.
5. Ground 4 failed. The late-published reports disclosed little new material, were substantially foreshadowed by earlier information, and caused no material prejudice. No relevant statutory time-limit was breached. Confidential economic information was exempt from disclosure as background papers because publication would disclose confidential commercial information in breach of confidence. The claim was dismissed.