The background to the case is an application for planning permission made by Ben Burgess, a major supplier of agricultural equipment, to develop a new headquarters on the outskirts of Swainsthorpe, Norfolk. Norfolk County Council (‘NCC’) acting in their capacity as statutory consultee for highways matters initially responded recommending refusal on the basis of the unacceptable highways impact of the planning application 

The scheme was subsequently amended. Importantly, however, the access proposed was one of the options originally considered unacceptable by NCC. This application was referred to NCC Cabinet for decision and, although officers considered that the scheme did not address the points in the original consultation response, the Cabinet resolved to not raise objections to the application on the basis that:

“the economic impacts alongside the safety and appropriateness of a roundabout on the A140 overcome objections as a highway authority.” 

In quashing this consultation response, Mrs Justice Lang DBE found, in agreement with the Claimant, that [67]:

“the proper response required of NCC in this context was an expert response in its capacity as highways authority, not its wider views on the benefits of the development to the local economy” 

The Court agreed that this position was “consistent with the general requirements of a lawful consultation” [68] and noted the important role played by statutory consultees “in ensuring that planning decision-making is informed, fair and effective” [70].  Mrs Justice Lang DBE further found that NCC failed to give adequate and intelligible reasons for its advice given in its consultation response [75]. The judge further agreed with the Claimant that representations to the local planning authority were not an alternative remedy to quashing the consultation response. 

The judgment is notable for being the first to consider the lawful scope of a statutory consultation response under the Town and Country Planning (Development Management Procedure) (England) Order 2015 and one of the first reported cases to more broadly consider the legality of a consultation response itself. 

Charles Merrett acted for the successful Claimant, instructed by Brendon Lee of Hewitsons.