Planning consent for retail unit nullified by High Court over ‘misleading’ officer’s report

Ref. Milton (Peterborough) Estates Company (t/a Fitzwilliam (Malton) Estate, R (on the application of) v Ryedale District Council & Anor [2015] EWHC 1948

The High Court has ruled that a planning officer mislead Ryedale District Council planning committee members over a retail development in central Malton which nullified planning consent.

The decision comes under a judicial review, after a similar action brought by the same party had earlier been dismissed as being without merit. In this case, Mr Justice Dove quashed the planning decision, which had provided planning consent for the development, after a judicial review by local landowner Fitzwiliam (Malton) Estate.

The decision turned on the interpretation of the planning inspector’s findings regarding Wentworth Street Car Park, and whether the sequential test for commercial development beyond town centres laid out in the National Planning Policy Framework (NPPF) had been correctly applied.

The judgement reads: 

“I am satisfied that the officer’s report did mislead members, and mislead them significantly, as to the findings and conclusions of the inspector in relation to the sequential test. 

“The starting point of the officer’s report was that the inspector’s conclusions were ‘not fully reasoned other than pointing to poorer pedestrian links’. That observation which appears to be the summation of the officer’s understanding of the inspector’s conclusions was not merely a gross over simplification but fundamentally misrepresented the inspector’s decision.”

Contrasting with the opinion of the officer, the Judge concluded that the inspector’s conclusions had been “fully reasoned and in a manner which was legally impeccable”.

He stressed that, if the officers were attempting to justify a decision which was opposite to the inspector’s, then their justification should naturally be thorough and adequate.  He added:

“In my view it is clear that they did not. That is perhaps unsurprising given that they thought, erroneously, that the inspector’s report wasn’t ‘fully reasoned’ save with respect to pedestrian links. 

“As a result of not having properly appreciated the wealth of reasoning provided by the inspector they thereafter do not engage with those reasons in explaining why a different answer to the one reached by the inspector should be provided.” 

Most interestingly, Fitzwiliam (Malton) Estate had earlier attempted to bring the same action under judicial review, but been denied on the grounds that the case had no merit. Considering the High Court has now entirely vindicated their position, this illustrates the subjectivity and inherent difficult with planning law and the courts.

This is not the end for the retail development, however, as Councillors will return to review the evidence once more and reach a fresh, unbiased conclusion.

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SRJ                                                                                                                                              15.07.15

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