Hewitt, R (on the application of) v Oldham Metropolitan Borough Council & Anor

In a planning judicial review, the weight given to landscape harm and restrictive policies is ordinarily a matter of planning judgment. The absence of a five-year housing land supply triggers the tilted balance but does not prescribe the weight to be given to competing policies or impacts. A landscape character assessment may rationally inform the weight given to harm where development affects an adjacent, rather than directly occupied, landscape character area.

Planning officers’ reports must be read fairly and benevolently. Minor slips do not invalidate a decision where the report, read as a whole, adequately identifies heritage harm, applies the statutory duties and weighs that harm against public benefits. Energy and climate-change requirements may, where the planning policy permits, be addressed at reserved-matters stage.

The claimant, acting for Save Our Valleys, sought judicial review of Oldham Metropolitan Borough Council’s decision to grant hybrid planning permission for up to 265 dwellings and a link road at Knowls Lane, Oldham. The application was materially identical to one refused in 2018.

The challenge alleged that the officers’ report misdirected the planning committee on the weight to be given to landscape harm and the operation of the tilted balance; failed to apply the statutory conservation-area duty and properly assess heritage harm; and failed to consider energy and climate-change requirements under the development plan and the National Planning Policy Framework. Permission to apply for judicial review had been granted by Lang J.

1. Outcome. The application for judicial review was dismissed.
2. The court applied the approach in R (Watermead Parish Council) v Aylesbury Vale District Council [2017] EWCA 152: an officers’ report is unlawful only where, read fairly as a whole, it significantly misleads the committee on a material matter and the error remains uncorrected. Minor mistakes may be forgiven.
3. The Council’s lack of a five-year housing land supply triggered the tilted balance under paragraph 11(d)(ii) of the National Planning Policy Framework. It did not dictate the weight to be given to landscape harm or the out-of-date OPOL policy. That was a planning judgment, subject to public-law review: Hallam Land Management Ltd v Secretary of State for Communities and Local Government [2018] EWCA Civ 1808. It was rational to distinguish direct harm to the Wharmton Undulating Uplands from indirect harm caused by development on an adjacent site.
4. The report adequately addressed the statutory duty under section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 and paragraph 196 of the National Planning Policy Framework. The reference to no harm to the Lydgate Conservation Area was a minor drafting slip. Read with the remainder of the report, the conclusion was that the heritage harm was less than substantial but outweighed by the public benefits.
5. Policy 18 of the DPD and paragraph 153 of the National Planning Policy Framework did not require every energy matter or an energy statement to be determined at outline stage. The policy permitted relevant sustainability and energy matters to be addressed through the reserved-matters process and associated conditions.