Swainsthorpe Parish Council, R (On the Application Of) v Norfolk County Council

A statutory consultee must answer the consultation within the statutory subject matter and in the capacity in which it is consulted. A local highway authority must provide an expert, intelligible and adequately reasoned response on highway matters. It must not carry out the local planning authority’s balancing exercise by weighing wider economic benefits against highway objections. The response must identify material objections, applicable policy and guidance, and the reasons for the consultee’s view. The local planning authority must be given sufficient information to consider the response conscientiously and give it appropriate weight. A response which bypasses the highway authority’s expert assessment and presents only a favourable overall conclusion is unlawful. A claimant’s own representations to the planning authority are no substitute for a lawful statutory consultation response.

Swainsthorpe Parish Council challenged Norfolk County Council’s decision, as local highway authority, to raise no objection to a planning application for a new agricultural machinery headquarters with access from the A140. The challenge concerned both the Cabinet resolution and the subsequent consultation response to South Norfolk District Council, which remained responsible for determining the planning application.

The principal issues were whether the matter was properly referred to Cabinet under the Council’s Constitution; whether the statutory consultation response was confined to highway matters and adequately reasoned; whether economic benefits were immaterial considerations; and whether the decision was irrational.

1. The claim was allowed. The referral to Cabinet was lawful. The evidence established public controversy, a difficult issue, and initial consultation with elected members indicating that referral should take place under paragraph 3(b) of section A of Appendix 5 to the Constitution.
2. The statutory consultation was limited to the matters for which the local planning authority was required to consult the local highway authority. Under section 54 of the Planning and Compulsory Purchase Act 2004 and articles 18 and 22 of the Town and Country Planning (Development Management Procedure) (England) Order 2015, NCC had to give a substantive response on the relevant highway matters, and no other matters.
3. A substantive response had to be an expert highway response, with intelligible reasons. NCC could make wider representations separately, but it could not use its highway-consultee response to perform the planning authority’s balancing exercise. The economic benefits of the development were therefore an immaterial consideration in that response.
4. NCC’s response was unlawful. It stated that a properly designed roundabout was safe and appropriate, but omitted the officers’ significant objections to a new junction on the A140, including the conflict with Policy DM 3.11 and Aim 7 of the “Safe, Sustainable Development” guidance. It also failed to explain that Cabinet had balanced economic benefits against the highway objections. Reading the letter with the enclosed report and minutes did not cure the omission. The response did not give the planning authority the information needed to assess the highway impact and give the consultee’s advice appropriate weight.
5. The reasons challenge to the referral decision failed. The Cabinet minutes, supplemented by the officer report, adequately explained why the matter was referred. The irrationality ground did not require determination. The proposed alternative remedy was inadequate, since representations by the claimant could not replace a lawful response from the expert highway authority. The court was not satisfied that the outcome would highly likely have been substantially the same, so section 31(2A) of the Senior Courts Act 1981 did not prevent relief.