Mon, 27 Apr 2020
R (on the application of Advearse) v Dorset Council  EWHC 807 (Admin)
- High Court declines to grant relief in a judicial review claim applying the “highly likely” test in section 31(2A) of the Senior Courts Act 1981
The parties and the background
Advearse, a residents’ group, objected to the decision of Dorset Council (“the Council”) to grant planning permission for a major development at Vearse Farm, Bridpoint and sought judicial review of that decision in the High Court.
Vearse Farm is situated within the Dorset Area of Outstanding Natural Beauty (“the AONB”). The proposed development, for which outline planning permission was granted, included up to 760 dwellings, a care home, a mixed-use local centre, a primary school, and employment land.
Although the Council granted planning permission in 2019, this followed from a decision taken by a planning committee of West Dorset District Council in 2017. (In 2019, several District Councils, including West Dorset District Council, were reorganised to form Dorset Council.) The 2017 decision adopted the recommendations of a detailed Officer’s Report.
When the 2017 decision was made, the relevant version of the NPPF was that published in 2012, but by the time that planning permission was granted in 2019, the 2018 version of the NPPF was in effect.
The High Court
Advearse’s challenge focused on whether the Council had properly considered the effect of the proposed development on the Bridport Conservation area and the Toll House, a Grade II listed property, both of which were adjacent to the site.
The first ground was concerned with whether the Officer’s Report (and therefore the decision to grant permission) had failed to apply properly NPPF policies on conserving and enhancing historic and natural environments. Swift J held that the Officer’s Report was deficient in that it failed to set out the requirements of the respective policies (essentially the need to the balance the less than substantial harm to both the conservation area and the Toll Bridge) and to then apply these. This meant that the Council had, in relation to the Toll House, further failed to discharge its duty under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 to have "special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses."
However, the Judge said that, by section 31(2A) of the Senior Courts Act 1981 (“section 31(2A)”), a court must refuse to grant relief on an application for judicial review “…if it appears…to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.” He further said that he was satisfied that it was highly likely that, absent the failures he had detected in the Officer’s Report, the councillors who considered the application would have come to the same decision to grant permission.
Advearse alleged in its second ground that there was a relevant material change in policy between paragraphs 115 and 116 of the 2012 NPPF and paragraph 172 of the 2018 NPPF and that the Council should have, when granting permission in 2019, revisited the 2017 decision on account of the change in NPPF policy. The Judge, however, disagreed. He further rejected Advearse’s third ground that, even if there had not been a relevant material change in NPPF policy, the Council had, in any event, failed to apply it correctly.
Thus, despite Swift J’s decision that the members of the relevant planning committee in 2017 had been materially misled by the wording of the report, the Judge declined to grant relief applying section 31(2A).
First, this case serves as a reminder of the operation of the “highly likely” test under section 31(2A).
Challenges to officers' reports often fail as a result of the court’s unwillingness to engage in “nit-picking” when considering them. However, even if a planning committee has been materially misled by an officer’s report, by the application of section 31(2A), relief will still be denied if it is “highly likely” that it would have come to substantially the same conclusion if the failure had not occurred. This will be of encouragement to local planning authorities and developers alike.
Second, Swift J raised an interesting point about how officers' reports should be read. While he noted that they “are to be read in the round and are not to be nit-picked or construed as statutes”, he said that it was “another qualitatively different exercise to attempt to piece together unconnected comments as if using pieces of a jigsaw to produce a picture that does not appear on the front of the box.”