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23rd April 2021

Duty of statutory consultees for planning applications and the limitations on their responses

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The Planning Court has today confirmed the scope and limitation of the duty upon statutory consultees when responding to planning consultations. The Planning and Environment Team at Hewitsons acted for the successful claimant with Charles Merrett of Francis Taylor Building as counsel.  

Swainsthorpe Parish Council v Norfolk County Council [2021] EWHC 1014 (Admin) concerned the judicial review of the consultation response of the county council (as the local highway authority) to South Norfolk District Council (as the local planning authority) which was considering a planning application for the development on land near the A140 highway in Swainsthorpe, Norfolk.  The consultation response dated 28 September 2020 gave effect to a resolution passed by the county council’s cabinet on 7 September 2020.

On first consultation the county council (as the local highway authority) had originally responded with an objection to the proposed development on the grounds that the proposed new access to the development would prejudice the safe and free flow of traffic along A140 (being a Corridor of Movement and contrary to the Policy DM3.11 of the district council’s local plan).

Following amendments to the proposed development, which didn’t materially affect the site access proposals, the district council reconsulted. The county council at such time decided to refer the decision of any revised statutory response to its cabinet for reasons of enabling its members to consider the economic benefits of the development against the highway concerns of its officers. Its cabinet decided that the county council would not object to the development as the economic impact of the proposals overcame the objections of highway officers in the first consultation response. A letter was then sent to the district council advising of the cabinet’s decision.

Statutory Consultees

The legal framework for statutory consultations in planning is found in section 54 of the Planning and Compulsory Purchase Act 2004 (“PCPA 2004”) and Town and Country Planning (Development Management Procedure)(England) Order 2015 (“the 2015 Order”). Section 54 of the PCPA 2004 makes provision for a prescribed requirement to consult a statutory consultee, and by subsection (5) imposes a duty on the consultee to give a “substantive response” (which is defined in Article 22 of the 2015 Order).

Importantly, the relevant consultees for a statutory consultation are set out in Article 18 and the Table in paragraph 1 of Schedule 4 of the 2015 Order. This includes the local highway authority for an area in relation to developments involving ‘the formation, laying out or alteration of any means of access to a  highway’.

Decision

Mrs Justice Lang DBE found that the scheme for statutory consultation in planning required:

  1. the local planning authority to consult the local highways authority in relation to the relevant categories in the Table in Schedule 4, and no other matters; and

  2. the local highways authority to give a substantive response to the local planning authority in relation to the relevant categories in the Table in Schedule 4, and no other matters.

Accordingly, the proper response required of the county council in this context was an expert response in its capacity only as highways authority and not its wider views on the benefits of the development to the local economy.

The judge noted that ‘statutory consultees play an important part in ensuring that planning decision-making is informed, fair and effective’ and ‘such importance is demonstrated by the fact that a decision-maker is required to give the views of statutory consultees great or considerable weight’. Therefore, if the product of consultation must be conscientiously taken into account and given great weight then it follows that it must be ‘an intelligible response which is adequately reasoned, bearing in mind its purpose of providing advice to the decision-maker, and informing its decision’.

Additionally, the judge commented that if the county council wished to make representations to the district council about the economic merits of the application for planning permission, it could have done so otherwise than in its capacity as highways authority.

In quashing the county council’s statutory response and its decision of cabinet Mrs Justice Lang DBE concluded that the county council improperly took into account the economic benefits of the proposed development when responding to the consultation and submitted an incomplete and inadequately reasoned consultation response. Instead of being made aware of the expert highway authority’s detailed views on the highways impact of the planning application, she noted that the district council was sent a response which ‘bypassed the highways issues and sought to perform the balancing exercise to be carried out by the local planning authority’.

If you have any questions in relation to this article or require assistance in matters concerning planning and judicial reviews then the Planning and Environment Team at Hewitsons LLP will be happy to assist.