Peyton Davies, R (on the application of) v Oxford City Council

Permission for judicial review requires an arguable ground with a realistic prospect of success. A planning officer’s report is read fairly and as a whole, with reasonable benevolence. The court intervenes only where a distinct and material defect materially misleads the decision-maker and may have affected the outcome.

The classification of development as a building or an engineering operation may involve fact and degree and remain a planning judgment. Green Belt openness has both spatial and visual aspects, but the weight and application of those considerations generally belong to the planning authority. A concise report is lawful if it identifies and addresses the relevant considerations sufficiently.

The claimant sought permission to bring judicial review proceedings challenging Oxford City Council’s grant of planning permission for 159 dwellings at Hill View Farm, Oxford. A Deputy High Court Judge had granted permission on Grounds 3A and 3B but refused permission on Grounds 1A, 1B and 1C.

On the renewed application, the claimant alleged that the officer’s report failed to identify a pumping station as a building, failed to assess the pumping station, attenuation pond and access paths against the purposes of the Green Belt, and failed to consider the spatial aspect of openness. The issue was whether those matters disclosed an arguable distinct and material defect in the report.

1. Permission refused. Grounds 1A, 1B and 1C were unarguable.
2. The governing question was whether, on a fair reading of the officer’s report as a whole, the officer materially misled the Planning Committee on a matter bearing upon its decision. Minor or inconsequential errors do not invalidate a planning decision. The court must not intrude into planning judgment except where public law principles require it.
3. It was open to the Council to treat the predominantly below-ground pumping station, including its equipment cabin and fencing, as an engineering operation rather than a building. Whether an object is a building under section 336(1) of the Town and Country Planning Act 1990 involves size, permanence and physical attachment, but the overlapping classification of operational development remains a matter of fact and degree.
4. The report sufficiently considered the development within the Green Belt and its effect on Green Belt purposes. Its reasoning was brief but rational and adequate.
5. Green Belt openness has spatial and visual components. The report addressed both by referring to the pumping station’s minimal scale and height and to screening by landscaping. The assessment involved planning judgment, not a legal question requiring a particular form of analysis.
6. In any event, the pumping station could have been constructed under permitted development rights available to a sewerage undertaker. Applying section 31(3D) of the Senior Courts Act 1981, that provided an alternative reason for refusing permission.

A Deputy High Court Judge granted permission on Grounds 3A and 3B and refused permission on Grounds 1A, 1B and 1C. The renewed application for permission on Grounds 1A, 1B and 1C was refused by the High Court.