Sarah Moakes, R (on the application of) v Canterbury City Council

A breach of a public body’s procedural rule does not automatically make a decision unlawful. The claimant must establish material prejudice and procedural unfairness. Whether prejudice exists is fact-sensitive, particularly where a planning authority has voluntarily provided an opportunity for oral representations and the claimant could have spoken but chose not to do so.

Statutory consultees’ views must receive great weight, but departure from them does not attract a heightened or special duty to give reasons. The ordinary South Bucks standard applies: reasons must be intelligible and adequate on the principal issues. A planning decision need not explain every reason or separately address each point if the reasons are clear from the decision as a whole.

A previous planning appeal decision requires separate reasons for a different outcome only where it is materially indistinguishable.

The claimant appealed against the dismissal of her judicial review of Canterbury City Council’s grant of hybrid planning permission for a winery and associated warehousing within the Kent Downs Area of Outstanding Natural Beauty. The High Court dismissed challenges based on procedural unfairness, inadequate reasons for departing from statutory consultees’ views, and failure to explain departure from a previous Medway appeal decision: [2024] EWHC 1272 (Admin).

On appeal, the claimant pursued those three grounds. The principal issues were whether breaches of the Council’s constitution caused material prejudice, whether the planning officer’s report adequately explained conclusions contrary to Natural England and the AONB Unit, and whether the Medway decision was sufficiently like the present case to require reasons for a different result.

1. Appeal dismissed. The Council’s constitutional breach did not itself establish procedural unfairness. Following R(Bradbury), the court distinguished the question whether a procedural breach rendered a decision unlawful from the separate question whether relief should be refused under section 31(2A) of the Senior Courts Act 1981 or in the court’s discretion. The claimant had to show material prejudice. The court also stated that contrary observations in R(Blacker) were obiter and not a correct statement of law.
2. The finding of no material prejudice was an evaluative fact-finding entitled to considerable weight. The claimant could have registered to speak. Her objections, and the material objections of CPRE Kent and Natural England, were fairly before the committee. The AONB Unit representative also articulated Natural England’s objections. No evidence showed that the absent speakers would have added material points. R(Embleton Parish Council) and R(Kelly) did not establish prejudice merely from losing an oral opportunity. There was no procedural unfairness.
3. The ordinary duty to give reasons applied. Statutory consultees’ views required great weight, but the description of the reasons for departing from them as cogent and compelling added nothing to the intelligible-and-adequate standard in South Bucks. Reasons for disagreement may emerge from the decision read as a whole and need not be separately identified.
4. The planning officer adequately explained the low level of harm to the AONB by accepting the relevance of the existing adjoining Business Park and proposed landscaping and planting. The officer addressed the principal controversy and did not need to deal separately with every facet, such as noise and artificial lighting.
5. The Council was not required to give reasons for departing from the Medway appeal decision. Under paragraph 177 of the NPPF, both decisions involved evaluative judgments about exceptional circumstances, harm and economic need. The Medway decision involved materially greater landscape harm and inadequate evidence of need. The present case involved low assessed harm, a robust alternative-site assessment and evidence of significant economic benefits. The Medway observation that wine-industry expansion was not a national priority was contextual, not a general principle.

Lord Justice Lewis and Lord Justice Stuart-Smith agreed with Lady Justice Andrews.

• Court of Appeal (Civil Division): appeal dismissed on Grounds 1, 2 and 3. The court upheld the High Court’s dismissal of the judicial review claim.
• High Court of Justice, King’s Bench Division (Planning Court): claim dismissed on all four grounds, including procedural unfairness, inadequate reasons, departure from the Medway appeal decision and alleged misleading contents of the planning officer’s report: [2024] EWHC 1272 (Admin) .