Save Warsash and the Western Wards, R. (On the Application of) v Fareham Borough Council

In a judicial review of a planning decision, the distinction between what land could be used for and what it would be used for if permission were refused is material. The decision-maker’s reasons must be read fairly and as a whole.

Where a public authority breaches statutory disclosure duties, relief should be refused only if it demonstrates that the decision would inevitably have been the same had it complied. A decision-maker considering late evidence must genuinely grapple with any request for an adjournment or deferral. A decision reached without fairly considering material evidence and procedural prejudice is unlawful.

The claimant sought judicial review of Fareham Borough Council’s grant of full planning permission for six houses at land in Warsash. The development engaged nitrogen-neutrality calculations and the assessment of the land’s existing or likely use if permission were refused.

The claimant challenged the decision on several grounds, including alleged misinterpretation of Natural England’s guidance, failure to publish background papers in time under the Local Government Act 1972, and failure to defer the planning committee meeting after late evidence was submitted. The court rejected the challenge to the use of the “would” test but addressed whether the procedural breaches could have made no difference.

1. Ground 3 failed. There was a material distinction between what the land “could” be used for and what it “would” be used for if planning permission were refused. “Would” imposed the more stringent test. Reading the planning officer’s advice as a whole, the officer had directed members to the correct question, and there was no reasonable possibility that members applied the wrong legal test.
2. Grounds 4 and 5 succeeded. The late-filed papers were background papers within sections 100B and 100D of the Local Government Act 1972. Fareham accepted that it was in breach of its statutory duty by failing to make them available in time.
3. The applicable remedial test was stringent. Relief could be refused only if the decision-maker demonstrated that the decision would inevitably have been the same had the statutory obligation been complied with: R (Joicey) v Northumberland CC [2014] EWHC 3657; [2015] PTSR 622.
4. The committee had also failed to grapple fairly with the request for a deferral. Although it made a decision by default, the chair and members treated the late material as supporting the officers’ position without properly considering whether it could be countered or rebutted. The approach was egregiously unfair. A decision-maker must consider a deferral request where it is raised: In the matter of an Application by Belfast City Council for Judicial Review v The Planning Appeals Commission [2018] NIQB 17.
5. It was not inevitable that properly informed representations, including possible statutory declarations and professional advice, would have produced the same nitrogen calculation. The planning permission granted on 11 August 2020 was therefore quashed. The application succeeded on Grounds 4 and 5 and otherwise failed.

First-instance judicial review. The judgment records that related grounds were addressed in R (oao Wyatt) v Fareham BC [2021] EWHC 1434 (Admin), but this was not an appellate decision.