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Court flags 'misleading' planning report

The Court has held that a decision to grant planning permission for a single dwelling on land in a Conservation Area was unlawful.

The Officer’s Report failed to specify two policies in the Development Plan that were directly relevant to the application. The report was therefore held to be materially misleading when relied upon by the committee to make their decision.

In R (Irving) v Mid Sussex District Council, the Council granted planning permission to construct a large dwelling on a piece of land which they owned. The site is an open field located in a Conservation Area. It was known for decades within the local community as the ‘Play Meadow’ until the Council locked the site to public access in 2013. The proposed dwelling would take up most of the site and block the views of the countryside to users of the public footpath that runs through it.

In considering the application, the planning committee reviewed the Officer’s Report which recommended the grant of planning permission. The Officer’s Report summarised the key policies in the Development Plan and concluded that the proposal complied with the plan when read as a whole.

What must a decision-maker take into account when granting planning permission?

Section 38(6) Planning and Compulsory Purchase Act 2004 requires a local authority to determine a planning application in accordance with the Development Plan unless material considerations indicate otherwise. If a site falls within a Conservation Area, there is an additional statutory duty under Section 72(1) Planning (Listed Buildings and Conservation Areas) Act 1990 to consider whether the proposal enhances or preserves the character and appearance of that Conservation Area. 

The purpose of an Officer’s Report in the context of a planning application is to draw the local authority’s attention to all of the relevant information that is required to discharge these statutory duties. The planning officer must therefore form their own judgement on what is relevant for these purposes, bearing in mind that the report is addressed to councillors with local knowledge of the area. It follows that if the local authority agrees with the officer’s recommendation to grant permission, this is on the assumption that the report contains a comprehensive summary of all of the information relevant to the application. The Court will therefore be reluctant to interfere unless there is a ‘distinct and material defect in the officer’s advice’ (R(Mansell) v Tonbridge and Malling BC).

Why was the report materially misleading?

The planning officer failed to list two Development Plan policies in his report which related to ‘Protection and Enhancement of Countryside’ (‘DP12’) and the development of ‘New Homes in the Countryside (‘DP15’). The Council submitted that they were not required to directly refer to DP12 and DP15 because they had already addressed the substance of the policies by reference to provisions in the Neighbourhood Plan headed ‘Protect and Enhance the Countryside’ (‘CNP5’).

The Court held that DP12 and DP15 were directly relevant, and perhaps more onerous, than CNP5. It further held that by inference, in failing to include these policies in the report, the officer had provided the planning committee with misleading information. Had the policies been included in the report, it is likely that the committee would have concluded that the proposal did not comply with the Development Plan as a whole because of the adverse effect on the village landscape caused by the development. 

What is the significance for developers and planning committees?

The case highlights the importance of ensuring that planning officers provide all of the information that is relevant to the application in order that the local authority may lawfully grant planning permission. This is particularly important for proposed developments that fall within Conservation Areas, because of the additional duty on planning officers to consider any effect of a development on the surrounding character of the area.

The Planning Advisory Service’s guidance on Officer’s Reports recognises that reports can be ‘fertile ground’ for judicial review challenges. The onus is therefore on the local authority to carefully review draft reports, particularly where they refer to complex points of policy or technical data. It is usually best practice for local authorities to consult their legal teams or appoint external specialist consultants where appropriate as part of the drafting process.

Likewise, developers should scrutinise the Officer’s Report prior to a decision being made and ensure that relevant policies have been correctly identified to avoid the risk of challenge by a third party within the six week judicial review period following grant of permission. 

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at January 2020. Specific advice should be sought for specific cases. For more information see our terms and conditions.

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