When an important consultee responds to an application, what are the duties on the decision maker? An example from an urban extension proposal illustrates the risks to the developer and to the planning authority.

The underlying facts in R (Christine Pratt and Another) v Exeter City Council and Others [2024] EWHC 185 (Admin) are unremarkable. Waddeton Park Limited applied for outline consent for 350 dwellings on land which formed part of a wider allocation for 3500 dwellings in the Newcourt area of Exeter. Access was to be approved. The access arrangements were objected to by the Claimants on amenity grounds including as to how the proposal would affect access to Christine Pratt’s home.

The highway authority responded positively to the application. The Claimants pointed out that the consultation response did not deal with their points of objection.

There are three practical and legal take aways in the judgment:

First, should the Claimants have brought proceedings against the highway authority to quash the consultation response, or join the highway authority as a defendant in the judicial review of the grant of planning permission?

No – neither of those courses was necessary. The argument that the Claimants were barred from challenging the consultation response was rejected. It was open to the Claimants to challenge the consultation response: R (Swainsthorpe Parish Council) v Norfolk County Council [2021] EWHC 1014 (Admin) before the decision to grant had been made, but there is no requirement to do so. Here the more sensible approach was to bring the problem to the planning authority’s attention. That approach did not prevent the Claimants from taking up the point in the High Court if there was no proper response.

Second, is a local planning authority entitled to simply assume that a consultee has complied fully with its legal obligations in making its response?

No. If the local planning authority do not take the steps which are reasonably necessary to inform themselves properly on the facts of the case, then there is no bar to the point being raised in a judicial review of the subsequent grant of consent. It follows that decision makers need to take the steps necessary to be reasonably satisfied with the adequacy of the advice received.

From the point of view of the legal security of a developer’s consent, it is relevant to consider the robustness of the underpinning of local planning authority’s positive position. Has a key consultee really grappled with the important issues raised?

Third, why was the planning authority’s decision unlawful because of the content of the highway authority’s consultation response?

There is a public law duty on decision makers to inform themselves adequately in reaching their decision, per Lord Diplock in Secretary of State for Education and Science v Tameside MBC [1977] AC 1014, where he said (at page 1065B): “The question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?”. The bar is set quite high for any challenge on this basis because the duty is only to take such steps as are reasonable, i.e. those which no reasonable decision maker would omit.

Where the consultation response has a substantial impact on the decision it will be similarly important to ensure that the information provided in that response includes that which is reasonably necessary.

This is a case in which the local planning authority failed in its Tameside duty in two respects: (1) in respect of the highway authority consultation response, and; (2) in not following up on the offer of an alternative access to the application site which would overcome the amenity issues raised by Christine Pratt, which would also have been consistent with the masterplan for the allocation.

Richard Kimblin KC appeared for the Claimants, instructed by Harry Campbell of DLA Piper, and James McMurdo in respect of the highways issues.