In the recent case of Moakes v Canterbury City Council [2025] EWCA Civ 927, the Court of Appeal provided some important guidance on procedural unfairness, public participation in planning committee meetings, and the duty to give reasons as part of the Officer’s Report. This article looks briefly at some key takeaways from the judgement.

Background

Ms Moakes, the Claimant, applied for judicial review of the Council’s decision to grant planning permission for a major commercial development in the Kent Downs AONB including, the expansion of a business park for a winery and 8,000 sqm of warehousing. The Claimant is a local resident and a member of CPRE Kent Branch. Both the Claimant and CPRE Kent had submitted written objections to the proposal, as had the Kent Downs AONB Unit and Natural England. Canterbury’s constitution allowed for “three persons” to speak in favour of the proposal and “three persons” to speak against the proposal at the committee meeting along with one representative of an advisory/amenity group or residents association (whose terms of reference had a direct interest in the proposal) to speak for, and another to speak against, the proposal.  The Constitution also allowed for the applicant, or their agent, to speak at the committee meeting.

The Council had informed the Director of CPRE Kent and a representative of Natural England, both of whom wished to speak against the proposal at the committee meeting, that they could only speak in their personal capacity and not on behalf of their respective organisations since only one slot was allocated for such organisations and this was already given to the Kent Downs AONB Unit. In the end, the representative for Kent Downs AONB Unit made submissions to the committee on behalf of both the AONB Unit and Natural England, but no representations were made on behalf of CPRE Kent. In the High Court challenge, HH Judge Robinson found that the advice from the Council was incorrect according to the terms of the Council’s constitution, and that they should in fact have allowed the representative to speak on behalf of their respective organisations. Therefore, both CPRE Kent and Natural England were found to have been misinformed by the Council.

The Claimant herself did not register to speak at the meeting because she assumed that CPRE Kent would be presenting their concerns to the committee and so there was no need for her to speak separately given that she shared the same concerns. However, as stated above, the Director of CPRE Kent did not make any representations to the committee either on behalf of CPRE Kent or in her personal capacity.  

Separately, CPRE Kent had also emailed the Council, on the morning of the committee meeting, with a recent appeal decision (“the Medway Appeal”) for a similar type of development in the Kent Downs AONB that was refused permission the previous day.

One of the key findings by HH Judge Robinson in the High Court was that although there had been breach of the Council’s constitution which put off two national organisations from speaking at the committee meeting, this did not amount to procedural unfairness since the Claimant had not suffered any material prejudice as a result of the breach.

Issues

The Claimant challenged the High Court decision and appealed on three of the four grounds on which judicial review was brought, and these were:

  • The Council failed to follow its constitution and/or acted in a manner that was procedurally unfair
  • The Council failed to give “great weight” to the views of expert consultees and/or failed to give reasons for disagreeing with them
  • The Council failed to give clear reasons for departing from the decision in the Medway Appeal.

Ground 1

The Court reaffirmed some key principles of the procedural unfairness argument (set out in the recent case of R (Bradbury) v Brecon Beacons National Park Authority [2025] EWCA Civ 489). The Claimant had initially sought to argue that the breach of the constitution automatically amounted to procedural unfairness and that there was no further requirement for the Claimant to prove that she suffered material prejudice as a result.  However, this argument fell away as a result of Bradbury, since the Court concluded that material prejudice needs to be demonstrated to establish procedural unfairness (see [24] of the judgement).

In addition, at paragraph 22 of the judgement, Lady Justice Andrews states:

 “22. […] the question whether the failure to comply with a procedural requirement results in the decision being unlawful is analytically distinct and should be considered separately from the question whether a remedy should be refused, either pursuant to s. 31(2A) of the Senior Courts Act 1981, or as a matter of judicial discretion. […]”

Key takeaway: even if there is a procedural error/breach (e.g. a breach of the Council’s constitution), this will not automatically amount to a finding of procedural unfairness. The claimant needs to demonstrate what material prejudice they have suffered as a result to establish procedural unfairness. This consideration is separate from the question of whether a remedy should be refused by the Court either under s.31(2A) or as a matter of judicial discretion.

The Claimant also argued that HH Judge Robinson was wrong to find she had not been materially prejudiced by the breach. The question for the Court was whether “she was materially prejudiced by the fact that CPRE Kent did not register to speak at the meeting, and by the fact that [Natural England] did not occupy a separate three-minute speaking slot from the AONB Unit.” ([33])

On this, Lady Justice Andrews notes at [31]:

“[…] It is well-established that at common law, procedural fairness does not require the planning authority to afford members of the public the right in every case to make oral representations on a planning application. The question whether there has been procedural unfairness if someone is precluded from making oral representations is fact sensitive and falls to be decided on a case by case basis.”

However, if an LPA does provide for a process for speaking at a meeting, it is obliged to ensure that the adopted process is fair (see [32]). The Council’s constitution in this case did strike a fair balance given that it allowed for even numbers of supporters and objectors to be heard. However, just because it made allowance for even numbers to speak it does not guarantee that such numbers would register to speak in any given case, therefore, HH Judge Robinson was entitled to find that there was no evidence that the Committee’s decision was unbalanced by the fact that oral representations were heard from more supporters than objectors in this case.

Key takeaway: As a matter of procedural fairness, an LPA is not required to allow members of the public the right to make oral representations on each and every planning application. However, where it does provide for a process for public engagement, this should be a fair one.

Moreover, as the Lady Justice Andrews noted at [36], the question of whether or not a claimant suffered prejudice is a finding of fact in the High Court and it should only be reviewed by an appellate court using the approach set out in the case of Smech Properties Ltd v Runnymede Borough Council and Others [2016] EWCA Civ 42 at [29] and [30] of that judgement. Namely, where a court is proceeding by way of a review of the judgement below, rather than a re-hearing, the findings of fact by the judge in the court below should be given appropriate weight. Additional weight may be placed on those findings of fact where the judge had particular expertise in the relevant areas of law to make that finding. However, even if the Court of Appeal were to carry out its own fact-finding exercise in this case to determine whether material prejudice had been incurred, Lady Justice Andrews concluded that the Court would agree with the finding in the High Court.

On the particular circumstances of this case, the High Court had found that the Claimant was not materially prejudiced as a result of the breach of the constitution and the Court of Appeal agreed. See paragraphs [37] – [45] of the judgement for the specific circumstances in this case which, amongst others, included the fact that written objections were already submitted to the Council, and the overlap in concerns shared by the Claimant, CPRE Kent, the Kent Downs AONB Unit and Natural England.  It was noted in this case that the Claimant herself had not been prevented the opportunity to speak, rather, she had decided not to register to speak as she had assumed that CPRE Kent would be making submissions to the Committee. Ultimately, the Court was not persuaded that the Claimant was materially prejudiced as a result of CPRE Kent and Natural England not speaking at the Committee meeting (although Natural England’s concerns were orally presented to the Committee by the representative for the Kent Downs AONB Unit).

Ground 2

The Claimant averred that the Council had failed to give express reasons for rejecting the views of Natural England (a statutory consultee) and the Kent Downs AONB Unit in relation to the issue of the level of harm from the proposal on the AONB.

The well-established case on the duty to give reasons is South Bucks District Council and another v Porter (No.2) [2004] 1 WLR 1953. Reasons only need to be given for conclusions on the principal issues in controversy; there is no obligation to give reasons for reasons.  However, with regards to the specific issue of reasons relating to views held by statutory consultees, Lady Justice Andrews remarked as follows:

“49. Whilst the views of statutory consultees must be afforded great weight in the decision-making process, there is no heightened standard of reasoning just because a departure from the views expressed by a statutory consultee requires what have been described as “cogent and compelling” reasons. That phrase is a form of shorthand for the test in Porter (in which it was said that the reasons for a decision must be intelligible and adequate) and adds nothing to it. […]

51. […] the reasons for disagreement with the statutory consultee on the key points in issue may emerge clearly from reading the decision as a whole, even if they are not separately identified. The question whether it is sufficiently clear from the OR why the planning officer takes a view contrary to the views expressed by a statutory consultee is acutely fact sensitive. Some cases may require the principal issues in controversy to be addressed in greater detail than others.”

In this case, the Court found that sufficiently clear reasons had been provided in the Officer’s Report as to why the Officer’s views differed from the views of Natural England and Kent Downs AONB Unit on the level of impact on the AONB.

Key takeaway: Although great weight should be given to views of statutory consultees, there is no enhanced standard of reasoning required to be met by planning officers where they depart from the views of statutory consultees. Nor is there a requirement to separately identify the reasons for this. The same principles set out in Porter apply to the cases where a planning officer takes a different view to that of a statutory consultee.

Ground 3

The principles for considering previous planning decisions were set out by HH Judge Robinson in the High Court as follows:

“28. Previous decisions are capable of being material considerations given the principle of consistency that like cases should be decided alike. However, to state that like cases should be decided alike presupposes that the earlier case is alike and not distinguishable in some relevant respect. A decision-maker is under no obligation to manifest his disagreement with other decisions which are distinguishable (North Wiltshire District Council v Secretary of State for the Environment (1993) 65 P. & C.R. 137 at paras145-146).” (emphasis added)

The High Court and the Court of Appeal in this case found that there were notable and relevant differences in the evidence for the Medway Appeal and the current case in terms of the level of harm and the economic needs assessment submitted as part of each application. Therefore, no explicit reasons were required to be provided for departing from the Medway Appeal.

 Key takeaway: previous decisions can be material considerations and local authorities should have this in mind when assessing planning applications due to the principle of consistency. However, the principle only takes effect making an earlier appeal decision a relevant material consideration, if that decision is on all fours with the extant planning application being considered and not distinguishable is some relevant aspect.

For all of the above reasons, the Court of Appeal dismissed the Claimant’s appeal.