Protesters fail in JR bid over "incorrect" planning guidance

An attempt to judicially review Manchester City Council’s decision to allow construction of a nine story block of student accommodation in Hulme has failed.

Opponents in the Block the Block campaign said when launching the judicial review that planning officers gave incorrect guidance, and failed to give reasons for deviating from a previous decision.

Roger Howard, a member of the campaign, told HHJ Stephen Davies, sitting as a High Court judge, that planning permission was invalidated because the advice given by planning officers in their written report and oral advice to the planning committee were materially misleading.

The council in June 2024 gave consent to developer Curlew Alternatives Eighth Property.

Mr Howard issued his claim on two grounds, both of which the judge dismissed.

The first was that officers materially misled the committee try saying there was no planning policy basis for refusing the application pursuant to its November 2023 ‘minded to refuse’ resolution.

His second ground said officers materially misled the committee in advising that members could not refuse to grant planning permission for the application but, instead had to state they were ‘minded to refuse’ the application and wait for it to come to the next meeting.

Mr Howard’s skeleton argument submitted: “The committee had already articulated a draft reason for refusal as recorded in the minutes of the previous meeting. Officers were asked to articulate the reason for refusal. It is not wholly clear why they did not do what was directed.

“Officers appear to have considered that they needed to identify a policy basis for the reason for refusal. While identifying a policy basis is obviously sensible, it is not a legal requirement. But moreover there is no explanation why officers did not support the proposed reason for refusal that due to the development proposed having an adverse impact on the balance and sustainability of the neighbourhood and also because of the disamenity brought by the application the proposal was considered to be inconsistent with the criteria in H.12(4) and (6) of the Core Strategy and paragraphs 64 and 96 of the NPPF..”

In response, the council said it was wrong to contend that the planning officers' obligation was to act in accordance with the committee's wishes as expressed at the previous meeting.

It said the planning officers were both entitled and obliged to consider the reasons given for refusal in their capacity as professionals and then to advise the committee “regardless of whether or not it was what the committee wanted to hear, and regardless of whether or not it accorded with the view of the committee as expressed in the passing of the minded to refuse motion passed at the last meeting”.

HHJ Stephen Davies said he agreed with Manchester’s submission.

He explained: “There is no legal basis for concluding that the planning officer had a positive obligation to do anything other than provide the planning committee with the relevant information they needed to make their decision, including information as to the relevant policies, without material misrepresentation.

“The planning officer was also entitled to give their advice as to the planning merits, as long as they did not materially misrepresent the position. They were not obliged to draft reasons for the planning committee on the basis that the planning committee might decide to maintain their decision, even though that decision was contrary to the planning officer's further advice.

“Still less were they obliged to draft reasons stating that the refusal was in accordance with relevant policy, even if they did not agree that it was.”

Mr Howard had argued that the officer’s report was materially misleading because it stated: “If members resolve to refuse the application contrary to this very clear advice, they would have to use the information in the above paragraph [i.e. the reason for the previous minuted minded to refuse decision] which has no planning policy basis”.

HHJ Stephen Davies said: “In my judgment, this submission seeks to isolate and take this part of the introduction out of context. That is because it appears immediately after the statement that the planning officers ‘do not consider that there is a policy-based reason to refuse this proposal’.

“In other words, it was being made clear that this was the planning officers’ view and their advice, on a matter of policy application not on a matter of policy interpretation.”

The judge said it “cannot credibly be submitted” that the committee could have been materially misled by this sentence, read in context, into believing that there was no planning policy which could justify a refusal.

Nor could it credibly be submitted, he said, that the committee could have read the sentence in this way and, “in consequence, simply not troubled to read the whole officers’ report because there was no point”.

Reading the officers’ report in full made it clear officers thought the application could not be refused on the basis of relevant policy.

The judge there was “nothing in” the second ground as it “cannot credibly be submitted that it was materially misleading” for the planning officers to express the view that if an additional reason concerning height was relied on for refusing it should be the subject of a ‘minded to refuse’ decision.

Mark Smulian