Material Prejudice as the Touchstone of Procedural Fairness

Comprehensive Commentary on Moakes (R, on the application of) v Canterbury City Council [2025] EWCA Civ 927

1. Introduction

This Court of Appeal decision clarifies the modern common-law and statutory approach to procedural challenges in planning decisions. At its heart lies an 11,900 m² winery and 8,000 m² warehousing scheme within the Kent Downs Area of Outstanding Natural Beauty (AONB). The claimant, Ms Sarah Moakes (supported by CPRE Kent) attacked Canterbury City Council’s grant of hybrid planning permission on four grounds, three of which reached the appellate court:

• Ground 1 – Procedural fairness: breach of the Council’s own constitution regarding public speaking.
• Ground 2 – Reasons: alleged failure to explain departure from the views of statutory consultees Natural England (NE) and the Kent Downs AONB Unit.
• Ground 3 – Consistency: alleged failure to explain departure from an inspector’s decision in the ‘Medway appeal’ (a similar winery proposal refused the previous day).

The High Court dismissed all grounds; the Court of Appeal (Lewison, Lewis & Stuart-Smith LJJ) affirmed, but in doing so sharpened the jurisprudence on when procedural errors vitiate planning permissions, and on the content of the duty to give reasons.

2. Summary of the Judgment

• Ground 1: Although Council officers misapplied the speaking rules, any breach of the constitution is merely a procedural impropriety; to succeed the claimant had to show material prejudice. None was shown. Loss of the opportunity to persuade is not prejudice per se.
• Ground 2: The Officer Report’s explanation of landscape impact, economic need and mitigation made the reasons for disagreeing with NE and the AONB Unit obvious and intelligible. No heightened “cogent and compelling” formula was required.
• Ground 3: The Medway proposal was not a truly comparable case: it entailed significantly greater landscape harm and a weak economic evidence base. Paragraph 177 NPPF judgements are inherently site-specific; therefore no duty arose to explain departure.
• Appeal dismissed with a ringing endorsement of the High Court’s analysis.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

• R (Bradbury) v Brecon Beacons NPA [2025] EWCA Civ 489 – clarified that material prejudice analysis precedes s 31(2A) Senior Courts Act (no-difference defence). Central to dismissing the “automatic invalidity” argument.
• Malloch v Aberdeen Corp [1971] 1 WLR 1578 – Lord Wilberforce’s maxim: A breach of procedure … cannot give a remedy unless behind it there is something of substance which has been lost.
• ClientEarth [2020] EWHC 1303, Save Stonehenge [2024] EWCA Civ 1227 – both reaffirm the prejudice requirement; cited to rebut reliance on s 31(2A) as a shortcut.
• Embleton Parish Council [2014] Env LR 16 and Kelly v Hounslow [2010] EWHC 1256 – contrasting fact patterns on lost speaking opportunities; used to demonstrate how rare prejudice is when written objections are before the committee.
• South Bucks DC v Porter (No 2) [2004] 1 WLR 1953 – classical test for adequacy of reasons; forms backbone of Ground 2 analysis.
• Together against Sizewell C [2023] EWHC 1526 – Holgate J’s rejection of a “heightened” reasons standard; adopted to neutralise claimant’s arguments.
• Kinnersley [2023] EWCA Civ 172 – sets out when decision-makers must grapple with previous appeal decisions; applied to show Medway was distinguishable.

3.2 The Court’s Legal Reasoning

Ground 1 – Procedural Fairness

Step 1: Identify the breach. Officers erroneously told CPRE Kent and NE that they could not use the “individual” speaking slots to speak on behalf of their organisations. This breached para 3.3.1 of the Council constitution.

Step 2: Is the breach automatically fatal? No. Citing Bradbury and ClientEarth, the Court emphasised an analytical separation between (i) establishing illegality and (ii) deciding remedy. Breach of a procedural rule is only potentially a public-law error; whether it is vitiating depends on prejudice.

Step 3: Was there material prejudice?

• Both organisations had already made detailed written objections.
• NE’s objections were conveyed orally by the AONB Unit’s speaker.
• No evidence of what would have been said beyond existing material – a burden resting on the claimant per Embleton.
• The claimant herself chose not to speak despite an available slot.

Hence, the outcome was not affected; no prejudice, no unfairness.

Ground 2 – Reasons and Statutory Consultees

The Court dismissed arguments that disagreement with a statutory consultee demands express paragraph-by-paragraph rebuttal.

The phrase “cogent and compelling” is merely shorthand for Porter, not a free-standing elevated test. (Lewison LJ)

The Officer Report:

• Identified landscape character and visual impact separately.
• Explained why existing industrial development and proposed mitigation reduce harm to a low level.
• Accepted the applicant’s LVIA methodology and findings, contrasting them with the objectors’ assertions.
• Set economic benefits in the national context of viticulture.

Reading the Report as a whole a reader would understand why NE’s harsher view was rejected – satisfying Porter.

Ground 3 – Duty to Explain Departure from Medway Appeal

Applying Kinnersley, similarity must be sufficient to require reconciliation. Differences here:

• Landscape harm: “significant” in Medway vs “low” in Canterbury.
• Economic need evidence: untested high-level figures vs detailed Assessment plus site alternative study.
• Medway inspector’s remark that expansion of the wine industry was not a national priority was context-specific, not a principle.

Therefore, no inconsistency, no duty to explain.

3.3 Likely Impact of the Judgment

• Procedural challenges tightened: Claimants must marshal concrete evidence of material prejudice. Bare breach arguments will rarely suffice.
• Statutory consultees’ influence clarified: Authorities may depart from their views without formulaic reasoning, provided the decision is intelligible.
• Reinforces site-specificity of AONB “exceptional circumstances” tests: Comparable cases will seldom trigger a consistency duty unless truly on all fours.
• Practical lesson for campaign groups: Always secure a speaking slot directly; do not rely on assumptions or officers’ informal advice.

4. Complex Concepts Simplified

• AONB / National Landscape: A protected landscape with the same legal protection as a National Park.
• Hybrid planning permission: A single permission granting (a) full consent for part of a scheme and (b) outline consent (details reserved) for the rest.
• Landscape & Visual Impact Assessment (LVIA): Expert study assessing changes to landscape character (qualitative) and visual receptors (views).
• Statutory consultee: Body that must be consulted by law (e.g., Natural England) whose response must be given “great weight”.
• s 31(2A) Senior Courts Act 1981: Court must refuse relief if satisfied the outcome not substantially different absent the error. Only arises once an error is proven.
• Material prejudice: A realistic possibility that the decision would or could have been different but for the procedural flaw.
• NPPF §177 (formerly 172): Allows “major development” in an AONB only where exceptional circumstances and public interest are demonstrated.

5. Conclusion

Moakes provides a clear, authoritative restatement that:

1. Not every procedural slip invalidates a planning decision; only those causing material prejudice.
2. The Porter test remains the sole benchmark for adequacy of reasons; statutory consultees enjoy no special “super-reasons” regime.
3. Appellants cannot bootstrap a consistency ground on superficially similar appeal decisions absent near-identity of facts.

For local authorities, the case offers comfort that minor mishandling of public-speaking protocols will not automatically scupper permissions, provided objectors’ substantive points are before the committee. For objectors, it is a reminder that successful challenges require evidence-based prejudice and a thorough grasp of the decision-maker’s reasoning. Ultimately, the Court of Appeal’s message is unequivocal: procedure matters, but substance reigns.