Jonathan Armstrong, R (on the application of) v Ashford Borough Council

A local planning authority’s resolution to grant planning permission is a legally significant decision capable of being challenged by judicial review before the formal permission is issued. Prematurity remains available in principle, but permission should not be refused on that ground where there is no reason to await the formal grant.

A planning officer’s report must be read fairly and as a whole. It need not set out every detail of consultation responses. Judicial review succeeds only where the report’s overall effect significantly misleads the committee about a material matter which remains uncorrected. The assessment of what information to include is primarily for the planning officer’s expert judgment.

The claimant sought permission to apply for judicial review of Ashford Borough Council’s resolution to grant the interested party planning permission for the change of use of the ground floor of an agricultural building to distillery use.

He alleged that the planning committee had acted unfairly because the application’s scope was clarified at the meeting, and that the officer’s report was misleading by omitting detail concerning the building’s agricultural use, machinery storage and possible further development. The defendant argued that the challenge was premature because the formal permission had not yet been issued.

1. Prematurity. The resolution was legally significant because it authorised officers to grant planning permission without further decision. Although prematurity may be available in principle, there was no reason in this case to require the claimant to await the formal grant. The application could therefore be considered.
2. Alleged unfairness. The application documents and the officer’s report made clear that the proposed change of use concerned the ground floor. The clarification at the meeting narrowed the apparent scope of the application and created no need for further consultation. No arguable unfairness arose.
3. Officer’s report. The governing principles, stated in R (Trashorfield Ltd) v Bristol City Council v Sainsbury’s Ltd, Bristol Rovers (1883) Ltd [2014] EWHC 757 Admin, require a report to be concise and focused, while allowing the planning officer expert judgment as to the information to include. The report must be read fairly as a whole and with regard to its knowledgeable readership. Judicial review does not succeed unless its overall effect significantly misleads the committee about a material matter which remains uncorrected.
4. Applying those principles, the report sufficiently summarised the relevant consultation response and made the underlying documents available to the committee. It was not arguable that the report misled the committee by failing to amplify the concerns raised by the rural planning adviser.
5. Alternative ground. Applying section 31(3D) of the Senior Courts Act 1981, it was highly likely that the outcome would not have been substantially different even if the report had fully set out those concerns.
6. Permission to apply for judicial review was refused. The costs protection claimed under the Aarhus Convention did not apply because the claimant had not served a compliant schedule under CPR 45.42(1)(b). Recoverable costs were reduced to £4,148.48, subject to any further application.