Loader, R (On the Application Of) v Rother District Council & Anor

Factual and Procedural Background

This appeal concerns a challenge to a local planning authority's decision to approve development on a site comprising open space, within the setting of a grade II listed building. The appellant appealed against the dismissal of her judicial review claim challenging planning permission granted for a development of 39 sheltered apartments at a bowls club site in a town. The appellant had objected to this and a previous similar proposal. The applicant for planning permission was a retirement living company. The appeal focuses on the authority's interpretation and application of government policy in paragraph 74 of the National Planning Policy Framework (NPPF), and the consequences of the council's failure to notify English Heritage and the Victorian Society before determining the application.

The site contains bowling greens and related facilities and lies near a terrace of grade II listed late-Victorian dwellings. A previous planning permission for a similar development was quashed by the court. The site was registered as an asset of community value under the Localism Act 2011, a registration upheld on review and appeal. The revised proposal involved demolition and redevelopment including new sheltered apartments and replacement bowling facilities. The council's Planning Committee granted permission by majority.

Legal Issues Presented

1. Whether the council correctly understood and lawfully applied the government policy in paragraph 74 of the NPPF relating to development on open space, sports, and recreational land.
2. Whether the judge erred in refusing to quash the planning permission despite the council's failure to notify English Heritage as required by regulation 5A of the Planning (Listed Buildings and Conservation Areas) Regulations 1990.
3. Whether the council's Planning Committee was misled regarding consultation with the Victorian Society, and if so, whether this vitiated the planning permission.

Arguments of the Parties

Appellant's Arguments

• The council misinterpreted paragraph 74 of the NPPF by failing to take into account the broad definition of "open space," including its "public value" and visual amenity, which was formally recognized by registration of the site as an asset of community value.
• The judge was correct that no assessment showed the open space to be surplus to requirements but wrong to conclude that the second bullet point test of paragraph 74 was met, as about half the open space would be lost and views blocked.
• The council's failure to notify English Heritage before deciding the application was a clear legal error that should have led to quashing the permission, as English Heritage might have made representations affecting the decision.
• The Planning Committee was misled by the officer's report stating "No comments received" from the Victorian Society when in fact the council had failed to consult them due to sending a consultation request to an outdated email address.
• This misinformation was material given the Victorian Society's prior objection to a similar proposal and the council’s duty to consider the setting of the listed building, thus vitiating the planning permission.

Respondents' Arguments (Council and Applicant)

• The council properly applied paragraph 74 of the NPPF, consistent with the saved local plan policy CF2, which was afforded full weight and involved reasonable planning judgment.
• English Heritage had no comments on the proposal when formally consulted after the decision, indicating that earlier notification would not have changed the outcome.
• The failure to notify English Heritage was a legal error but did not justify quashing the permission because the decision would have been the same.
• The statement "No comments received" from the Victorian Society was factually correct, and even if misleading, it was not seriously so as to invalidate the decision.
• The council was under no statutory obligation to consult the Victorian Society on this proposal, and the absence of their consultation did not amount to legal error.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Tesco Stores Ltd. v Dundee City Council [2012] PTSR 983	Judicial review of planning judgment; court interference only on public law grounds.	Supported the view that whether a facility is "surplus to requirements" is a matter of planning judgment.
Shadwell Estates Ltd. v Breckland District Council [2013] EWHC 12 (Admin)	Importance of statutory consultee role of English Heritage in planning decisions affecting heritage assets.	Supported the argument that the judge should have given more weight to English Heritage's statutory role when exercising discretion.
R. (on the application of Friends of Hethel Ltd.) v South Norfolk District Council [2011] 1 WLR 1216	Effect of failure to notify English Heritage on planning decisions.	Cited regarding the potential impact of English Heritage's views on planning outcomes.
Smech Properties Ltd. v Runnymede Borough Council [2016] EWCA Civ 42	Reluctance of appellate courts to overturn discretion exercised by first instance judges in planning cases.	Supported the principle that the judge's exercise of discretion should be given weight on appeal.
Secretary of State for Communities and Local Government and South Gloucestershire Council [2016] EWCA Civ 74	Judicial discretion in planning decision-making.	Reinforced the approach to discretion exercised by lower courts in planning matters.
R. (on the application of Siraj) v Kirklees Metropolitan Council [2010] EWCA Civ 1286	Significance threshold for misleading information invalidating planning decisions.	Guided the court's assessment of whether misleading officer advice was sufficiently serious to vitiate the decision.
R. v Selby District Council, ex p. Oxton Farms [1997] E.G.C.S. 60	Legal standard for materiality of misleading information in planning decisions.	Used to support the need for "significant" or "serious" misleading to affect legality of decisions.

Court's Reasoning and Analysis

The court first considered the council's application of paragraph 74 of the NPPF, which sets out three disjunctive tests for development on open space, sports, and recreational land. The court found that the council's decision was consistent with the saved local plan policy CF2, which requires an assessment showing that the facility is surplus to requirements or that equivalent or better provision will be made. The court emphasized that the form of assessment is a matter of planning judgment, with limited scope for judicial interference.

The court accepted the council officer's conclusion, supported by the Leisure Use Assessment submitted by the applicant, that the proposal complied with the second bullet point of paragraph 74, providing equivalent or better replacement facilities. The court also held that the council was entitled to conclude the open space was surplus to requirements, thus satisfying the first bullet point. The appellant's argument about the importance of visual amenity and public value was considered but found to have been adequately addressed within the policy framework and officer reports.

Regarding the failure to notify English Heritage before decision, the court acknowledged this was a legal error under regulation 5A of the Planning (Listed Buildings and Conservation Areas) Regulations 1990. However, the court agreed with the judge below that English Heritage had no comments on the proposal when later consulted, indicating no prejudice or impact on the decision. The court considered the correspondence with English Heritage relevant and concluded that the discretion to withhold relief was properly exercised, as the outcome would have been the same.

On the issue of the Victorian Society consultation, the court found that the council had attempted to consult the Society but failed due to sending the consultation to an outdated email address. The officer's report stated "No comments received" which was factually correct but misleading, as the Society had not been consulted at all. The court held that the Planning Committee was significantly misled by this statement on a material matter, given the Society's prior objections and the council's interest in their views. This misinformation was sufficient to vitiate the planning permission as it affected the committee's decision-making process. The court rejected the notion that the error was immaterial or that relief should be withheld.

Holding and Implications

The court's final decision was to ALLOW THE APPEAL but only on the ground concerning the council's failure to effectively consult the Victorian Society and the misleading advice given to the Planning Committee on that matter. The other grounds, including the application of paragraph 74 of the NPPF and the failure to notify English Heritage, were rejected.

The effect of this decision is that the planning permission granted by the council is quashed due to the material procedural error regarding the Victorian Society consultation. The case does not establish new precedent on the interpretation of paragraph 74 or the exercise of discretion on failure to notify English Heritage but reinforces the importance of accurate and complete consultation procedures and truthful reporting to decision-makers.