Cornerstone Planning

Constitutions and the right to speak at a planning meeting

The High Court has dismissed a judicial review of planning permission for major development by the UK’s biggest wine producer in an area of outstanding natural beauty (AONB). Isabella Tafur examines the judgment.

The High Court has dismissed an application for judicial review by Sarah Moakes, a member of CPRE, against the decision of Canterbury City Council to grant planning permission for a 11,900m2 winery and 8,000m2 of warehousing to be part-occupied by Chapel Down, a leading wine producer, in the Kent Downs AONB.

A number of consultees, including Natural England, the AONB Unit, CPRE and Historic England objected to the scheme.

The Claimant alleged that the grant of permission was unlawful on four grounds:

  1. the Council had unlawfully failed to allow Natural England or CPRE to speak at the committee meeting, in breach of its constitution;
  2. the Council failed to give “great weight” to the views of statutory consultees or to give reasons for disagreeing with them;
  3. the Council failed to have regard to a previous appeal decision which had found that wine industry was not a national priority justifying major development in the AONB; and
  4. the officer’s report materially misled the Committee in advising that there was no definition of “exceptional circumstances” in para 177 of the NPPF.

Following a substantive hearing over a day and a half, the High Court rejected all grounds and dismissed the application, finding that:

  1. The Council had acted in breach of its constitution by failing to allow representatives Natural England and CPRE to speak on behalf of their organisations at the committee meeting but the Claimant had not suffered material prejudice as a result. Absent prejudice, there was no error of law: R(ClientEarth) v Secretary of State for Business, Energy and Industrial Strategy [2020] PTSR 1709; Bramley Soar Solar Farm Residents Group v Secretary of State for Levelling Up [2023] EWHC 2842 (Admin); R(Tesco Stores Ltd) v Stockport MBC [2023] EWHC 3154 (Admin).
  2. The OR fairly summarised the objections from consultees, attributed appropriate weight to them and provided adequate reasoning for disagreeing. The principal controversial issues in dispute between the developer and Natural England, CPRE and the AONB Unit were the extent of the impact on the AONB and existence of exceptional circumstances.  The OR provided adequate reasons for rejecting the advice of consultees on those matters. Questions of prematurity and specific criticisms of the developer’s Landscape and Visual Impact assessment were not principal controversial issues in dispute. At the committee meeting, the officer had further emphasised the importance of the project’s impacts on heritage assets and the AONB.
  3. The previous appeal decision was not so similar to the present case that the Council was obliged to give reasons for disagreeing with its conclusions. To ascertain whether a previous decision was a ‘like’ case, it was necessary to make a comparison between the cases, which did not constitute ex post facto rationalisation.  Reading the previous decision letter as a whole it was clear that the evidence on need was very different and suffered from a number of flaws which did not arise in the present case.
  4. The OR did not misconstrue the phrase “exceptional circumstances” in paragraph 177 of the NPPF or mislead the Committee as to the test it had to apply. The officer correctly advised members that the existence or otherwise of exceptional circumstances was a matter of planning judgment.

Isabella Tafur is a barrister at Francis Taylor Building. Instructed by Maples Teesdale, she acted for the Interested Party developer in resisting the claim.