Palm Developments Ltd, R (On the Application Of) v Medway Council

On a renewed application for permission to seek judicial review of a planning permission, the court applied the principle that a local planning authority must reconsider a resolved decision only where a new factor might have materially affected its deliberations and led to a different outcome. The test is whether the factor was capable of affecting the decision, not whether it was merely a change in circumstances. A previous planning permission’s expiry was immaterial where the authority’s real reliance was on the underlying planning merits. A change in national planning policy was also immaterial where the earlier decision had found no material loss of ancient woodland. Matters known to the committee need not be repeated in the officer’s report where their omission is not misleading. Permission was refused.

Palm Developments Ltd, an adjoining landowner, sought judicial review of Medway Council’s decision to grant the Attwood family planning permission for up to 450 homes at Gibraltar Farm. The development involved a small incursion into ancient woodland and required access over land owned by the Council, which the Council was unwilling to sell.

The Council had previously refused permission for materially the same development. On appeal, the Secretary of State allowed the proposal following a public inquiry. The Council later resolved to grant the second application. Before formal permission was issued, the earlier permission expired, national planning policy concerning ancient woodland changed, a further policy paragraph concerning stalled housing permissions was introduced, and the Council’s cabinet reaffirmed its refusal to sell the access land.

The central issue was whether those matters were new factors which might have materially affected the committee’s deliberations and led it to a different decision.

1. Permission refused. The renewed application was unarguable on each of the three grounds advanced.

2. The governing question, derived from Kides v South Cambridgeshire District Council and summarised in Wakil v Hammersmith [2014] ENVLR 14, was whether the new factor relied upon might have had a material effect on the authority’s deliberations and might have led it to reach a different decision. Neither authority required actual further consideration of the factor before the grant of permission.

3. The expiry of the earlier permission could not arguably have affected the outcome. The officer’s report and committee minutes showed that the Council’s critical consideration was the underlying planning merits, which had already been comprehensively upheld on appeal. The earlier permission’s capability of implementation was an additional point, not the basis of the decision.

4. The change from the 2012 National Planning Policy Framework policy on ancient woodland to paragraph 175(c) of the 2018 Framework did not arguably alter the result. The inspector’s earlier reasoning was properly understood as finding no material loss of ancient woodland, rather than undertaking the broader balancing exercise between loss and countervailing development benefits. The small area needed for access was limited, contained no high-importance trees, and was offset by new woodland, open space and management measures. The strengthened policy threshold therefore had no material application.

5. The absence from the officer’s report of an express statement that the Council owned and would not sell the access land was not misleading. The issue had been before the committee and was expressly recorded in its minutes. The new housing-supply paragraph 76 was, at best, neutral and could not conceivably have affected the deliberations. Nor could the cabinet’s later reaffirmation of the Council’s position on selling the land constitute a material change, since the committee already knew that position.

The judgment records that permission to bring judicial review proceedings had previously been refused on paper by Holgate J on 25 January 2019. The renewed application was refused by the High Court (Administrative Court).