A reminder of an essential principle that applies where a challenge to a planning permission is based on alleged shortcomings in the officers’ report.
In Oxton Farms v Selby District Council [1997] EWCA Civ 404, Judge LJ stated: “From time to time there will no doubt be cases when judicial review is granted on the basis of what is or is not contained in the planning officer’s report. This reflects no more than the court’s conclusion in the particular circumstances of the case before it. In my judgment, an application for judicial review based on criticisms on the planning officer’s report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken”.
There was such a challenge in R (on the application of Mid Counties Co-operative Ltd) v Forest of Dean District Council [2013] EWHC 1908 (Admin). There, the local planning authority (“LPA”) had granted outline planning permission for an out of centre retail food store, against the background of a planning history that included the secretary of state calling in and refusing a similar application in 1999, following a public inquiry. The claimant’s principal grounds were (a) that the LPA had failed to consider the importance of consistency with the secretary of state’s decision and (b) that, alternatively, the LPA had failed to provide reasons for departing from that decision.
The court pointed to the duty on the LPA first to consider whether the secretary of state’s earlier decision was distinguishable and secondly, if it was not, to weigh that decision and give reasons for departing with it. There were obvious similarities in respect of the two underlying applications in terms of size, the policy imperative to protect the vitality and viability of the town centre and the nature of the financial contributions proposed to offset the harm. However, the officers’ report had failed to identify any considerations flowing from the earlier decision, and to consider its reasoning. It was insufficient merely to argue that members of the planning committee were familiar with the planning history related to major retail projects in the area.
In consequence, and applying the dictum of Judge LJ in Oxton Farms, the overall effect of the officers’ report was to mislead the planning committee significantly about material matters that were uncorrected before the relevant decision was taken.
John Martin
