Animal Equality UK, R (on the application of) v North East Lincolnshire Borough Council

Animal-welfare concerns may be material planning considerations because they can relate to the character of a proposed land use. A planning committee is generally entitled to decide whether to take such concerns into account and what weight to give them, subject to rationality review. An officer may recommend that a consideration should receive no weight in the particular application, provided the report conveys an evaluative planning judgment rather than an incorrect legal rule that the consideration can never be material. Reports must be read benevolently and as a whole. A court should avoid forensic analysis of individual passages or committee comments, while intervening where advice materially misdirects the decision-maker.

The claimant sought judicial review of the Council’s grant of planning permission for an onshore salmon farm. It alleged that the planning committee had been materially misled into believing that fish-welfare and animal-welfare concerns were legally incapable of being material planning considerations. Permission was granted on that ground after renewal; a second ground was not pursued. The central issue was whether the officer’s written report and oral advice unlawfully excluded those concerns, or instead expressed a lawful planning judgment that they should not be taken into account in this application.

1. Claim dismissed. The court held that animal-welfare concerns were capable in law of constituting material planning considerations under Town and Country Planning Act 1990, section 70(2). Whether to take a lawful non-mandatory consideration into account is ordinarily for the decision-maker. The exception is where the consideration is so obviously material that it must be considered. The weight given to a material consideration is likewise for the decision-maker, subject to Wednesbury review: R (on the application of) Jones v North Warwickshire District Council [2001] EWCA Civ 315, Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 and R (Sainsbury’s Supermarkets Ltd) v Wolverhampton City Council [2010] UKSC 20.
2. The officer’s report had to be read fairly, benevolently and as a whole. The phrase stating that fish-welfare concerns were “not considered” material conveyed an evaluative professional planning judgment, not a general legal proposition that such concerns were incapable of being material. The reference to comparable intensive livestock units supplied a planning justification and distinguished the case from R (Copeland) v London Borough of Tower Hamlets [2010] EWHC 1845 (Admin), where members had been misled about legal materiality.
3. The report’s separate reference to permitting regimes dealing with fish welfare reinforced, but did not create, the officer’s planning judgment. The claimant had not challenged the proposition that other permitting regimes considered fish-welfare matters. The court therefore did not determine that issue.
4. The oral advice was generally consistent with the report. The word “can’t” was not to be isolated or dissected forensically. Committee transcripts may assist in identifying variance between oral and written advice, but individual members’ comments require caution and should be assessed in the context of the collective debate: R (Palmer) v Herefordshire Council [2017] 1 WLR 411 and R (Village Concerns) v Wealdon District Council [2022] EWHC 2039 (Admin).
5. Because there was no unlawful misdirection, it was unnecessary to decide the alternative outcome argument under Senior Courts Act 1981, section 31. No order beyond drawing up an appropriate order was specified.