Roger Howard v Manchester City Council

Planning officers’ advice to a planning committee must be read with reasonable benevolence and in context. The question is whether the advice materially misled the committee on a matter bearing on its decision, and whether the error may have affected the outcome.

Officers may advise on the planning merits, but the committee remains responsible for deciding the weight of material considerations and whether permission should be granted or refused. Where officers cannot professionally support a proposed refusal as consistent with planning policy, they are not required to draft reasons asserting that it is policy-compliant. A “minded to refuse” procedure ordinarily permits further advice where new or different reasons are proposed, but it is not mandatory. The judicial review claim was dismissed.

Manchester City Council granted Curlew Alternatives Eighth Property LP planning permission for purpose-built student accommodation in Hulme. Roger Howard, a local resident, sought judicial review, alleging that the Council’s planning officers materially misled the planning committee.

Ground one concerned advice that there was no policy-based reason to refuse the application on the basis of its effect on a sustainable mixed residential neighbourhood and student balance. Ground two concerned advice that members had to resolve to be minded to refuse, rather than immediately refusing permission, when an additional reason based on height and scale was proposed. The court also considered whether relief would have been refused under section 31(2A) of the Senior Courts Act 1981.

1. The claim was dismissed. The officers’ report, minutes and oral advice did not materially mislead the committee.

2. Applying the principles in R (Mansell) v Tonbridge and Malling BC and R (Lisle-Mainwaring) v Kensington and Chelsea RLBC, the advice had to be read as a whole and with reasonable benevolence. The report set out the relevant policies, including Policy H12 and Policy DM1, and gave detailed advice on the planning merits. Its statement that there was no policy-based reason to refuse conveyed the officers’ planning judgment. It did not state that refusal was legally impossible or that no policy could rationally support refusal.

3. Policy H12 was the principal policy for purpose-built student accommodation, but its criteria had to be considered alongside other relevant policies. The reference in criteria H12(4) to integration and neighbourhood vibrancy was not a freestanding requirement independent of its context. Criterion H12(6), concerning unacceptable effects on residential amenity, involved an assessment of fact and degree and was a matter of planning judgment. The committee remained entitled to disagree with the officers and refuse permission if it reached its own planning judgment.

4. The “minded to” procedure was ordinarily appropriate where a new or different reason for refusal was proposed, so that officers could reconsider the matter and report further. It was not mandatory. Officers were not obliged to provide reasons for a refusal which they could not professionally support as justified by planning law, policy or material considerations. The advice concerning the additional height and scale reason was therefore not materially misleading. In any event, later advice clarified that the procedure was the normal course, rather than an absolute requirement.

5. The court observed that, had ground one succeeded, relief would probably not have been refused under section 31(2A) of the Senior Courts Act 1981, because it could not safely be concluded that the outcome would highly likely have been substantially the same. Ground two, considered separately, would probably have satisfied the statutory test.