Ticehurst Parish Council, R (on the application of) v Rother District Council

Where paragraph 11(d) of the National Planning Policy Framework applies, the decision-maker must address limb (i) and, if necessary, limb (ii). The exercise need not be expressed sequentially if it is performed in substance.

A policy protecting an Area of Outstanding Natural Beauty is relevant to limb (i). The decision-maker must give great weight to conserving and enhancing the area, but need not use those precise words where the decision and its context show that the principle was applied. A planning committee may rely on the officer’s report and need give reasons principally for departing from the officer’s advice.

There is no general right to address a planning committee. A duty of fairness arises only in particular circumstances. Even where procedural unlawfulness is established, relief may be refused if the claimant suffered no material prejudice.

The claimant challenged the defendant’s second grant of planning permission for a live/work unit and associated development in the High Weald Area of Outstanding Natural Beauty. The first permission had been quashed by consent following an earlier judicial review.

The claimant argued that the defendant had misapplied paragraph 11(d) of the National Planning Policy Framework, failed to comply with section 38(6) of the Planning and Compulsory Purchase Act 2004, gave inadequate reasons, and acted unfairly by refusing the claimant permission to speak at the committee’s redetermination meeting.

The central issues were whether the committee had substantially applied the paragraph 11(d) exercise, whether its reasons were legally adequate, whether it had complied with section 38(6), and whether fairness required the claimant to be heard.

1. Grounds 1 and 2 dismissed. Paragraph 11(d) required consideration first of whether relevant footnote 7 policies supplied a clear reason for refusal under limb (i), and, if not, of the tilted balance under limb (ii). The committee did not expressly follow that sequence, but it carried out the required exercise in substance. It concluded that AONB policy did not provide a clear reason for refusal and that the benefits outweighed the adverse impacts.
2. Paragraph 182 of the NPPF was a relevant footnote 7 policy. The committee had been repeatedly referred to it in the officer’s report and at the meeting. It was also familiar with AONB policy. The absence of the words “great weight” from the resolution did not establish illegality. The committee’s resolution showed that it had considered the AONB harm and decided that the development’s benefits justified permission. The duty under section 85(1A) of the Countryside and Rights of Way Act 2000, if performed, necessarily involved giving great weight to conservation and enhancement of the AONB.
3. The reasons were adequate. The committee could rely on the officer’s report as the principal context for its decision and was required to explain its points of departure, not to repeat the officer’s reasoning or provide reasons for reasons. Its stated reasons were that the proposal was innovative, was not isolated development, and was sustainable under paragraph 11(d).
4. The section 38(6) challenge failed. The officer’s report made clear that the proposal conflicted with the development plan, particularly because it harmed the AONB. There was no evidence that the committee disagreed with that assessment. A separate express statement that section 38(6) had been applied was unnecessary.
5. There was no statutory or general right to speak at a planning committee. The circumstances did not create a common law duty of fairness. The claimant’s parish was not physically affected, it had made written representations, and the redetermination was a fresh decision. The Constitution was correctly construed as limiting a “relevant parish council” to one whose area wholly or partly contained the application site.
6. In any event, section 31(2A) of the Senior Courts Act 1981 would have prevented relief. The claimant’s concerns had been recorded in writing and raised at the meeting by another speaker. The claimant therefore suffered no material prejudice. The claim was dismissed.

First instance judicial review claim. The judgment records that an earlier planning permission had been quashed by consent on 18 December 2023, with the application remitted to the defendant for redetermination.