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Petition of Richard Cross against the Highland Council for Judicial Review (Court of Session)
Summary of Opinion — Judicial Review
Factual and Procedural Background
The Petitioner brought judicial review of the decision of the Respondents dated 19 March 2025 granting planning permission (reference 23/05466/FUL) for the erection of 66 dwellinghouses on land 190 metres east of The City. The application was submitted to the Respondents on about 16 November 2023. The Petitioner and other objectors (including Company B and an organisation of which the Petitioner was chair, Company C) lodged objections principally based on potential adverse impacts on trees and alleged loss or deterioration of ancient woodland and veteran trees and asserted disconformity with Policy 6 of NPF4.
The Respondents' Committee initially considered the application on 16 April 2024 and agreed to grant subject to a section 75 agreement; the Respondents thereafter adopted the Inner Moray Firth Local Development Plan II. Further officer reports were prepared (January 2025 and March 2025). On 19 March 2025 the Respondents issued a decision notice granting conditional planning permission. The Petitioner seeks declarators that the decision was unreasonable/irrational, ultra vires for failure to take into account relevant considerations and for being made in the absence of sufficient information, and an order reducing the decision. The Respondents oppose the petition.
Legal Issues Presented
- Whether the Respondents' decision of 19 March 2025 to grant consent was unreasonable, irrational or otherwise ultra vires.
- Whether the Respondents failed to take into account relevant material considerations, in particular the effect on ancient woodland and veteran trees and compliance with NPF4 Policy 6(b)(i).
- Whether the Committee decided the application in the absence of sufficient information and thus was not properly informed to reach a decision.
Arguments of the Parties
Petitioner's Arguments
- Policy 6(b)(i) of NPF4 is absolute in not supporting any loss of ancient woodland or ancient and veteran trees; each sub-paragraph of Policy 6 must be considered separately.
- The officer reports and presentation failed to recognise and apply Policy 6(b)(i); they treated matters as if Policy 6(c) (woodland removal with compensatory planting) were applicable.
- The Committee were not properly informed that the proposal would result in loss of ancient woodland (particularly due to drainage works in the north-east corner) and thus were misled or left without a material consideration being assessed.
- The March 2025 report did not adequately alert the Committee to the Woodland Trust's escalated objection (from concern to outright objection identifying specific trees to be felled).
Respondents' Arguments
- The reports identified the relevant issues, policies and evidence, and the Committee had all written materials before it, including tree surveys, protection plans and both letters from Company B.
- The planning officer's judgment—that there would be no loss of ancient woodland as land area and that only some individual trees would be removed (none ancient/veteran)—was a proper planning judgment supported by the Forestry Officer and expert materials.
- Company B was not a statutory consultee; there was no obligation to compare its letters in the reports; the objections and expert assessments were before the Committee and considered.
- The Committee fully debated the matter, including a motion to refuse advanced by a member and rejected by the Committee.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 at 348 | Listed among authorities relied upon by the parties on legal principles applicable to planning judicial review. | Included in the list of authorities in the parties' submissions; no discrete separate application in the judgment text beyond listing. |
| Crest Nicholson Operations Limited v Secretary of State for Housing Communities and Local Government [2025] EWHC 2194 (Admin) at paragraphs [26] - [32] | Listed among authorities relied upon by the parties on legal principles applicable to planning judicial review. | Included in the list of authorities in parties' submissions; referenced as part of agreed legal principles. |
| St Modwen Developments Limited v Secretary of State for Communities and Local Government [2017] EWCA Civ 1643 | Listed among authorities on planning judgment and assessment. | Listed in parties' submissions; no distinct further application recorded in the judgment. |
| Mansell v Tonbridge and Malling Borough Council [2017] EWCA 1314 at paragraph 42 | Principles on how courts review planning officers' reports to committee; planning officers' reports should be read with reasonable benevolence and courts will only intervene for distinct and material defects. | Quoted and applied in the court's reasoning (paras 34–35) to assess whether the officer's reports materially misled the Committee; guided refusal to interfere absent distinct/material defect. |
| Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759 at 780 and 784 | Listed among authorities on planning and administrative law principles. | Included in authorities referenced by the parties; cited as part of the body of authorities informing legal principles. |
| Moray Council v Scottish Ministers 2006 SC 691 at paragraphs 28 - 32 | Listed among authorities on planning judicial review. | Referenced in the parties' note of authorities; no separate application in the judgment text beyond inclusion. |
| Simson v Aberdeenshire Council 2007 SC 366 at paragraph 23 | Listed among authorities on planning judicial review. | Included in parties' submissions; no distinct further application recorded in the judgment. |
| R (on the application of Whitley Parish Council) v North Yorkshire County Council [2023] JPL 1081 at paragraphs 35 - 37 | Listed among authorities on planning judicial review. | Included in the list of authorities relied upon by the parties. |
| R (on the application of Buxton) v Cambridge County Council [2022] JPL 487 at paragraphs 42 and 43 | Authority concerning what should be included in officer reports and the court's approach to critiques of such reports. | Referred to by respondents' counsel regarding scope of officer reports; relied upon in submissions (para 27). |
| Oxton Farms & Another v Selby District Council 2017 PTSR 1003 at 1111 | Listed among authorities on planning judicial review. | Included in parties' submissions; no discrete further application recorded. |
| R (Loader) v Rother District Council [2017] JPL 25 | Example of a case where an officer's factual error materially misled a committee. | Cited in Mansell quotation as example; used in context to illustrate when courts will intervene. |
| R (Watermead Parish Council) v Aylesbury Vale District Council [2018] PTSR 43 | Example of misdirection of members as to meaning of relevant policy. | Cited in Mansell quotation to illustrate material misdirection grounds for intervention. |
| R (Williams) v Powys County Council [2018] 1 WLR 439 | Example where officer failed to deal with a matter on which committee ought to receive explicit advice. | Cited in Mansell quotation as an example of when courts may intervene. |
| R (Morge) v Hampshire County Council [2011] PTSR 337 | Authority referenced regarding how reports should be read (for councillors with local knowledge) and court's approach. | Cited in the Mansell quotation relied upon by the court in assessing officer reports. |
| R v Mendip District Council Ex p Fabre [2017] PTSR 1112 | Referenced in discussion of court approach to officer reports. | Cited in Mansell quotation and referenced in the judgment's discussion of principles. |
| R (Palmer) v Hertfordshire Council [2017] 1 WLR 411 | Authority on assuming that members follow officer advice absent evidence otherwise. | Cited in Mansell quotation and referenced by the court in explaining standard of review. |
Court's Reasoning and Analysis
The court (Judge Menzies) proceeded by reference to the parties' agreed legal principles and the authorities identified in the parties' submissions, notably the guidance in Mansell on how courts review planning officers' reports to committees. The court noted the substantial body of material before the Committee: three substantial officer reports (April 2024, January 2025, March 2025), all letters of objection (including those of Company B), and multiple expert tree reports and management plans.
The court applied the Mansell approach: officer reports should be read with reasonable benevolence and interference is appropriate only where there is a distinct and material defect that materially misled the decision-makers. The court examined whether (a) the reports and presentation materially misled the Committee about loss of ancient woodland or ancient/veteran trees; (b) Policy 6(b)(i) was applicable and misapplied or ignored; and (c) the Committee were unaware of Company B's strengthened objection.
On the definition in Annex F to NPF4, the court accepted the respondents' submission that Policy 6(b)(i)'s prohibition on "any loss of ancient woodlands" is directed at loss of area of land that constitutes ancient woodland, not merely the removal of individual trees within such land unless those trees are ancient or veteran. The court found no suggestion that any trees to be removed were ancient or veteran.
The court found that the planning officer had addressed ancient woodland and trees in detail in the April 2024 report and that the Committee had before it the expert materials and letters of objection. The Forestry Officer did not object. The court concluded that the officer's assessment and advice represented an exercise of planning judgment open to her and that there was no distinct and material defect in the reports that materially misled the Committee. The court also held there was no obligation to provide a comparative textual analysis of Company B's two letters and that those letters were before the Committee.
Holding and Implications
Holding: PRAYER OF THE PETITION REFUSED.
Implications: The court refused the petition for judicial review and thus the Respondents' decision of 19 March 2025 granting planning permission remains in effect. The court applied established principles governing review of planning officers' reports and declined to interfere absent a distinct and material defect; the decision does not establish a novel precedent beyond reaffirming the orthodox approach of deference to planning committees where reports are not materially misleading.
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