High Court refuses permission for challenge alleging officer report misled councillors considering change of use application

A High Court judge has refused permission for a judicial review challenge arguing Ashford Borough Council's planning committee was misled by an officer's report when deciding to grant planning permission for a change of use of a building to a distillery.

In Armstrong, R (On the Application Of) v Ashford Borough Council [2023] EWHC 317 (Admin), the claimant, Jonathan Armstrong, also contended that consultees did not have enough time to consider a last-minute change made to the application.

The dispute can be traced back to 2019, when the landowner, who was the interested party in the legal challenge, applied to the council for a determination whether prior approval was necessary for a new building which was said to be reasonably necessary for the purpose of agriculture in connection to a vineyard.

The council decided that the building was reasonably necessary for the purpose of agriculture and that prior approval was not required.

Six months after the building's completion in January 2021, the owner then applied for planning permission for a change of use, enabling the ground floor of the building to be used as a distillery.

In the accompanying planning statement, the application said the change would see "beneficial use of a disused rural building".

The judge noted a discrepancy between the planning statement and other information contained in the application that described the site as not being currently vacant.

The planning statement said nothing about the agricultural use authorised in 2019.  

An officer's report published just over a week before the planning committee was set to consider the planning application said permission was sought for the ground floor of the building and mentioned that the mezzanine level would be "in continued used for Vineyard staff facilities and storage together with the Covered Apron, alongside routine vineyard operations".

But two days before the committee was set to consider the application, an agent acting for the planning permission applicant emailed the council to point out that the proposed change of use related only to the ground floor and therefore requested that the condition be reworded.

A planning officer updated the report accordingly and circulated it to committee members the day before the meeting, where permission was later granted.

Mr Armstrong subsequently lodged a judicial review application on the following two grounds:

1. Unfairness (No detail was supplied to planning committee members as to the usage since 2019) and neither Mr Armstrong nor any of the consultees had any opportunity to consider the change to description of the application or any significance which the officer may have considered it may have had.
2. Inadequacy of report such that the committee was misled and such that a decision made on such a flawed basis cannot stand.

On ground one, the judge preferred the council's submission that there was no arguable unfairness in relation to the clarification of the scope of the application.

"A careful reader of the application would have worked out that it concerned the area of the ground floor, as the plan showed. Then, one week before the meeting, the Officer's report made that perfectly clear. This was understood by the Interested Party, whose agent picked up the point on 15 August 2022 as I have said. It therefore should not be assumed that anyone was wrong-footed when the scope of the application was clarified at the start of the meeting," he said.

"Moreover, to the extent that the clarification could be seen as a change, it narrowed the scope of the application and made it, if anything, less controversial. It created no need for any further consultation."

Under ground two, the claimant contended that the planning officer had omitted critical comments about the application made by a planning expert the council had consulted.

In response, the council's representation argued that its approach had been in line with the legal principles relating to the reports of planning officers set out in R (Trashorfield Ltd) v Bristol City Council v Sainsbury's Ltd, Bristol Rovers (1883) Ltd [2014] EWHC 757 Admin.

"I agree with those submissions," the judge said. "In my judgment it is not arguable that the absence of any further amplification of the comment made by Rural Planning meant that the report, read as a whole, misled the Defendant's Planning Committee about a material matter."

The judge found that neither ground had a "realistic prospect of success" and refused permission to seek judicial review.

Adam Carey