GLENN KINNERSLEY (R on the application of) v MAIDSTONE BOROUGH COUNCIL

A planning decision will be unlawful only where the officer’s report contains a distinct and material defect that materially misleads the committee on a matter bearing on its decision. The court reads the report fairly and as a whole, with reasonable benevolence, and does not interfere merely because an assessment or planning judgment could have been different.

Local plan policy DM5 applied only to the previously developed land because residential gardens were expressly excluded from brownfield land. An inconsistency in describing an existing building’s heritage impact was not material where the report properly assessed the effect of the proposed development. A possible alternative scheme is potentially relevant, but need not be considered as a matter of legal obligation unless statute, policy or obvious materiality requires it.

The claimant sought judicial review of Maidstone Borough Council’s decisions dated 21 January 2021 granting planning permission and listed building consent for the conversion and partial redevelopment of studio buildings and works to a historic walled garden at Hollingbourne House.

He alleged four errors: misinterpretation of local plan policy DM5; inconsistency in assessing the existing buildings’ contribution to the setting of the listed house; failure properly to assess heritage impact under section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990; and failure to consider an alternative, more sensitive conversion of part of the buildings.

The central questions were whether the officer’s report materially misdirected the planning committee and whether the authority failed to take account of a legally material consideration.

1. Outcome. The judicial review claim failed on all four grounds. The challenge to listed building consent also failed because it depended entirely on the unsuccessful challenge to planning permission.
2. Policy DM5. Policy DM5 concerned development on previously developed land. It expressly excluded residential gardens from the definition of brownfield land. The walled garden was to remain residential garden land, whereas the studio building occupied brownfield land. The officer therefore applied DM5 to the correct part of the site and correctly considered whether the relevant works produced the policy benefits.
3. Officer’s report and consistency. The report described the existing studio building as having a negative effect on the setting of Hollingbourne House, whereas earlier material had described its effect as neutral. That difference was relevant but was not a critical aspect of the decision and did not materially mislead the committee. The committee’s principal task was to assess the effect of the proposed development on the listed building’s setting. The report addressed that issue in detail, and the claimant’s representations also drew the inconsistency to members’ attention.
4. Heritage duty. The report expressly identified the duty under section 66 and gave a detailed appraisal of the effect on Hollingbourne House, the walled gardens, glasshouses, Gazebo and Donkey Wheel. A fair reading of the report as a whole showed no material legal error. The claimant’s complaints principally challenged the merits and weight of the officer’s planning assessment, matters for the decision-maker.
5. Alternative proposal. The possibility of converting the front studio building into one dwelling was mentioned and considered in the report. Whether it deserved further weight was a planning judgment. There was no statutory or policy rule requiring fuller consideration, and the treatment of the proposal was not irrational.