The basics #8 - planning officers in the dock
Officers’ reports in court.
Well, not literally in the dock. Most of the time, anyway. Let’s hope 🤞🏻.
Lets talk about court. Lots (and lots) of the Planning Court’s day-to-day case-load is taken up by judicial review challenges against decisions of local planning authorities to grant planning permission.
But since 2013, there’s been no statutory duty on planning committees to give their reasons for granting permission. If you want to understand how the law’s developed on that, have a look at Oakley in the Court of Appeal (one of those rare cases I managed to win) and Dover in the Supreme Court (where I came in an honourable 2nd place). In a nutshell: there are now cases where a Council’s reasons for granting permission will be required (more on which those cases actually are in a future post). When they are required, we often find them in the officer’s report.
Which means that the officer’s report to committee is always an important document in High Court challenges to grants of planning permission. And sometimes - let’s be honest - it’s more or less the only really important document in the case.
No pressure then (😬) for the hapless planning officers up and down the land tasked with penning these reports under enormous pressure to exacting deadlines on a daily basis. Under the spectre that, a few months down the line, every little bit of their report may be disected by know-it-all bewigged barristers and a frowning High Court Judge in a vaulted hall somewhere in that Victorian Gothic cathedral of justice on the Strand.
What happens if (gulp) the report makes a mistake? Is it curtains? Will the permission be quashed? How are officers’ reports actually read in court?
For a summary of the cases, have a look at Mansell or Lensbury - here are 5 headlines:
Planning officers' reports to committee are not to be read with undue rigour, but with reasonable benevolence, fairly, as a whole, focussing on substance rather than form, and bearing in mind that they are written for councillors with local knowledge. The report does not need to set out and discuss each policy in turn, like some sort of examination paper.
Unless there is evidence to suggest otherwise, it may reasonably be assumed that, if the members followed the officer's recommendation, they did so on the basis of that advice.
The question for the court will always be whether, on a fair reading of the report as a whole, the officer has materially misled the members on a matter bearing upon their decision, and the error has gone uncorrected before the decision was made.
Minor or inconsequential errors may be excused. It is only if the advice in the officer's report is such as to misdirect the members in a material way – so that, but for the flawed advice it was given, the committee's decision would or might have been different – that the court will be able to conclude that the decision itself was rendered unlawful by that advice.
Where the line is drawn between an officer's advice that is significantly or seriously misleading – misleading in a material way – and advice that is misleading but not significantly so will always depend on the context and circumstances in which the advice was given, and on the possible consequences of it. There will be cases in which a planning officer has inadvertently led a committee astray by making some significant error of fact. There will be others where the officer has simply failed to deal with a matter on which the committee ought to receive explicit advice if the local planning authority is to be seen to have performed its decision-making duties in accordance with the law. But unless there is some distinct and material defect in the officer's advice, the court will not interfere.
So far so good. The bar for the court interfering with officers’ reports looks high. You aren’t writing an exam paper (although it must seem like that sometimes). You can even mislead members (!), so long as the misleading isn’t significant or material.
But here’s an important rider. In cases where the officer’s report stands as the record of reasons for granting permission, it will also need to “enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues” without leaving "room for genuine as opposed to forensic doubt as to what [was] decided and why”: see §35-§37 of Dover.
Another rider. Unfortunately, officers do not “live in the world of Humpty Dumpty”, and cannot make the development plan mean whatever they would like it to mean: Tesco v Dundee. So you have to interpret your planning policies correctly. Remember your statutory duties (e.g. section 38(6) - more on that here - or the PSED). And don’t forget to stick only to “material planning considerations” - more of which here.
So. Aim though we might for perfection, if your report to committee doesn’t quite achieve it, well the permission may still just about survive! So long as you avoid distinct, material defects which mislead members, you’re on the right track. But even then, you might not be able stop the barristers from having a go at tearing your report down - sorry in advance about that, particularly if the bewigged know-it-all in question happens to be me.
Stay well, #planoraks.
