Alex Johnstone, R (on the application of) v Rother District Council

Where a local authority accepts that a consultation defect may have prejudiced a claimant’s ability to assess evidence and make representations, potentially affecting the outcome, the court may quash the resulting planning decision by consent on that ground. This judgment records the agreed basis for quashing a certificate of lawfulness. It does not determine other grounds of challenge that the consent order left open.

Alex Johnstone brought a judicial review claim against Rother District Council’s decision to grant a certificate of lawfulness for the existing use of a building as a joinery workshop. Elizabeth Sargent, the interested party, agreed to the proposed consent order. The claim challenged the Council’s consultation, its consideration of whether the use fell within use class E(g)(iii), and the adequacy of its reasons.

The Council accepted that the consultation ground established an error in law and agreed that the decision should be quashed on that ground alone. The central issue was whether to make the agreed order; the other grounds remained unresolved.

1. Order made by consent. On the papers, the court granted permission to proceed and quashed the Council’s decision to grant the certificate of lawfulness. The quashing order was made on Ground 1 alone, on the basis set out in the parties’ Agreed Statement of Reasons.
2. Accepted consultation error. The Council accepted that it had failed to make available a statutory declaration submitted with the application. The agreed reasons recorded that this omission may have prejudiced the claimant’s ability to assess the evidential basis of the application and formulate representations, which might have been different and potentially led to another outcome. They also recorded that the claimant’s representation should have been available on the Council’s website and acknowledged as received and considered in the planning officer’s report.
3. Other grounds left open. The order was without prejudice to the claimant’s position on Ground 2, concerning whether the use fell within use class E(g)(iii), and Ground 3, concerning the adequacy of reasons. The court made no determination on either ground. The interested party agreed that the decision should be quashed on Ground 1 only.
4. Publication and costs. The judge considered it appropriate to explain the order in a short public judgment to promote open justice and to embody the order in that judgment. The Council was ordered to pay the claimant’s reasonable costs, subject to detailed assessment if not agreed, within 14 days after agreement or assessment.

not stated in the judgment.