Geoffrey Simmonds, R (on the application of Geoffrey Simmonds) v Blaby District Council & Ors

In judicial review of planning decisions, a committee decision may be unlawful where a councillor is significantly misled by materially mistaken advice and consequently does not participate in the debate or vote.

Where a live issue arises during the meeting, an officer’s report must adequately address the relevant planning policy. The statutory test for refusing relief under section 31(2A) of the Senior Courts Act 1981 has a high threshold. The court must avoid entering the decision-maker’s forbidden territory and assess the likely outcome using only untainted parts of the decision.

Compliance with section 66(1) of the Listed Buildings Act may appear from the report and meeting advice as a whole. Exact statutory language is unnecessary if the required weight is substantively given.

The claimant challenged Blaby District Council’s grant of planning permission for 13 dwellings and listed building consent for demolition of a curtilage-listed milking shed beside his listed farmhouse.

Four grounds were advanced: failure to address deliberate neglect under paragraph 196 of the National Planning Policy Framework; failure to apply section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990; erroneous treatment of an emerging conservation area designation; and alleged improper exclusion of Councillor Moitt from the Planning Committee’s decision-making.

The court heard oral evidence on the fourth ground. The central questions were whether the decision-making process was materially unfair or misleading and, where an error existed, whether relief should nevertheless be refused under section 31(2A) of the Senior Courts Act 1981.

1. Ground 4 succeeded. The officer advised Councillor Moitt on the mistaken premise that he had voted against the application at an earlier Town Council meeting. In fact, he had not participated in that decision. The advice was understood as meaning that he had fettered his discretion, and he consequently did not attend the Planning Committee to debate or vote. Although the ultimate decision was his, he was entitled to rely reasonably on materially mistaken advice. The error rendered the procedure unfair.
2. Ground 1 succeeded. The officers’ reports omitted paragraph 196 of the National Planning Policy Framework because the officers considered there was no evidence of deliberate neglect. The allegation was weak and tenuous, but the issue became live during the committee debate. The committee should then have been advised about the policy. The omission was material, and the section 31(2A) defence was not established because the court could not properly decide that the outcome would highly likely have been the same without entering the decision-maker’s forbidden territory.
3. Ground 2 failed. Section 66(1) required special regard to the desirability of preserving the listed building or its setting. The less-than-substantial harm had to receive considerable importance and weight. Reading the reports and meeting advice fairly and benevolently, the court was satisfied that the committee understood the presumption against development and gave the heritage harm the required weight. An overly legalistic insistence on particular words was unwarranted.
4. Ground 3 failed. Even if the advice concerning the emerging conservation area was wrong or insufficiently clear, the issue added little of significance. The relevant heritage assessment had already been undertaken by the specialist officer, and the building enjoyed statutory protection through its listed status. The error therefore did not materially mislead the committee and the section 31(2A) defence would also have been available.

The planning permission and listed building consent were set aside.