Broad, R (On the Application Of) v Sanctuary Group

In planning judicial review, an officer’s report must be read with reasonable benevolence rather than undue forensic rigour. The question is whether it materially misled the decision-maker on a matter bearing on the decision.

Where a planning application is amended, procedural fairness may require reconsultation even if the amendment is not a fundamental or substantially different development. The court must consider the nature and extent of the changes, whether affected persons may have wished to make representations, and whether the failure caused material prejudice. Reconsultation is required only where fairness demands it; changes must be of a high order of significance.

The claimant sought judicial review of Rochford District Council’s grant of planning permission to Sanctuary Group for six social housing units replacing garages near her home. The application was amended before permission was granted. The amendments moved one block closer to the claimant’s property, introduced a first-floor balcony and included a proposed privacy screen.

The claimant alleged that the Council had unlawfully failed to consult on the amended plans, misunderstood their contents, failed to take account of overlooking and privacy impacts, and relied on material errors in its officer’s report. The central issues were whether the amendments required further consultation and whether the report materially misdirected the delegated decision-maker.

1. Application dismissed. The Council’s decision was lawful. The claimant was ordered to pay the defendant’s agreed costs of £5,000.
2. Planning officers’ reports must be read with reasonable benevolence and without undue forensic rigour. The question is whether, read as a whole, the report materially misled the decision-maker on a matter bearing on the decision, so that the decision might have been different. Minor or inconsequential errors do not invalidate the decision. This principle, derived from Mansell v Tonbridge and Malling BC [2018] J.P.L. 176, was adapted to a delegated decision.
3. Reconsultation on amended planning proposals is governed by procedural fairness. The issue is whether, having regard to the nature and extent of the amendments, affected persons were deprived of a fair opportunity to make representations they might have wished to make. The test is not confined to whether the amendment creates a fundamental or substantially different development. The court nevertheless must avoid requiring consultation for every change; the difference must be of a high order of significance and material prejudice must be shown.
4. The judge rejected the submission that R (Gallagher Group Ltd) v Competition Markets Authority [2019] A.C. 96 displaced the approach in R (Holborn Studios Ltd) v Hackney LBC [2018] P.T.S.R. 997. Gallagher concerned substantive fairness as a separate ground of review, whereas the present issue concerned procedural fairness.
5. The Council’s report was unsatisfactory and insufficiently clear about the balcony, but the evidence showed that the delegated decision-maker knew of the revisions, the privacy screen and the existing objections. The report did not materially mislead her. The assessment of overlooking and privacy was a matter of planning judgment and did not reach the high threshold of irrationality.
6. The amendments altered the layout and introduced a balcony, but the underlying issue remained overlooking of the claimant’s garden. The changes were not of such significance that fairness required reconsultation, and the claimant suffered no material prejudice. The Council would have reached the same conclusion even if further representations had been made.
7. Evidence from officers may elucidate the reasons given in a planning report and may exceptionally correct or add to them, but it cannot fundamentally alter or contradict the stated reasons. The Council’s evidence was admissible, although parts of it were treated with caution.