Misleading advice to councillor invalidates housing permission

28 Nov 2023

The advice provided by a democratic services officer to a councillor was held by the High Court to have been sufficiently misleading as to invalidate a planning permission for 13 dwellings on a site in Leicestershire.

The claimant occupied a grade II listed farmhouse next to the application site and asserted that the council’s consideration of the planning application had been flawed. In particular the planning officer’s report and advice given to the committee failed to adequately address whether the building on the appeal site, which was listed, had been deliberately neglected thereby adding support for its demolition. In addition a councillor who sat on the planning committee had also been advised that he should not vote on the planning application because of an objection to the proposal by a town council in which he had also been involved.

Mr Justice Worster considered witness statements from the respective parties and permitted cross-examination in order to establish the facts relating to the advice which had been given to the councillor. The officer had reviewed the town council’s web site and had been under the impression that the council had endorsed a vote to object to the planning application, and to which it was assumed the district councillor had been involved. This the judge observed, had led to her to inform the councillor of the district council’s code of conduct which required all councillors to retain an open mind and not to pre-determine a decision before it had come before the planning committee.

On the basis of the advice received the councillor decided not to attend the planning committee and observed proceedings from the public gallery the judge noted. In his opinion the error occurred because it had been assumed that the councillor had endorsed a decision of the town council to object to the planning application when he in fact, had not. This led the councillor to believe based on the advice received, that he had fettered his discretion and should not vote nor take part in the consideration of the application, the judge decided.

Therefore it was clear that the councillor made the decision not to attend the committee and vote, in good conscience, with the councillor relying reasonably on the mistaken advice given to him by the council’s officer, the court determined. He was plainly entitled to attend and vote, the judge ruled and but for this advice, he would have done so. That was a material error in the decision making process and was sufficient to quash the council’s decision to approve the application.

The judge also concluded that the planning committee had not been clearly advised of the significance of paragraph 196 of the NPPF which required decision makers to take into account whether there had been deliberate neglect of a heritage asset in order to provide a justification for its demolition and redevelopment. This matter was raised by one of the councillors and the advice given was it was not a planning matter, the judge noted when in fact it clearly was a relevant issue for the committee to consider.

The judge concluded that although the condition of the building was a minor matter in the context of the issues on this application, and that the allegation that there had been deliberate neglect was indeed weak and tenuous, there was at least one councillor who thought that the condition of the building was worth raising in debate, to the extent that she questioned who was responsible for its repair and was given erroneous advice that it was not a relevant consideration. This added to the court’s decision to quash the planning permission.

Simmonds v Blaby District Council & Others

Date: 15 September 2023

Ref: [2023] EWHC 2217 (KB)