AC-2024-CDF-000147 - [2025] EWHC 2395 (Admin)

The principles to be applied in considering whether the members of the Cabinet were materially misled by the Officers’ Report were summarized by Lindblom LJ in R (Mansell) v Tonbridge & Malling BC [2017] EWCA Civ 1314, [2019] [PTSR] 1452 at [42], to which summary is to be added the warning of Sir Geoffrey Vos at [62]. Reports are “not to be read with undue rigour but with reasonable benevolence”. They are to be read as a whole and there is to be a “fair reading of the report as a whole”. There will only be a public law failing if the members have been materially misled. The members will only have been materially misled if the report is “significantly or seriously misleading” on a “matter bearing on their decision” such that the decision might have been different but for the flawed advice. The court should not engage in a “legalistic analysis of the different formulations adopted in a planning officer’s report”. I was also referred to judgments of Sales J (as he then was) in R (Maxwell) v Wiltshire Council [2011] EWHC 1840 (Admin) at [43] and of Sullivan LJ in R (Siraj) v Kirklees Metropolitan Council [2010] EWCA Civ 1286 at [19]. Both of those preceded Lindblom LJ’s summary in Mansell and were making the points which were later set out in that summary albeit in slightly different language.

Here the Claimant is asserting that the Officers’ Report and the accompanying documents were materially misleading. It is, therefore, for the Claimant to establish that proposition on the balance of probabilities. It is not enough for the Claimant simply to raise a doubt as to the adequacy of the material (see per Sir Duncan Ouseley in Safe Rottingdean Ltd v Brighton and Hove Council [2019] EWHC 2632 (Admin) at [84]). What is necessary is that the material be found, on a reading in accordance with the preceding principles, to have been materially misleading.

When considering whether an Officers’ Report was materially misleading account is to be taken of the readership. Those to whom such a report is addressed are not planning lawyers nor specialist planning consultants but nor are they novices with no knowledge of or understanding of the system of planning control. The adequacy of the explanation contained in a report is to be considered against the background of the knowledge of the readership (see R v Mendip DC ex p Fabre [2017] PTSR 1112 per Sullivan J, as he then was, at 1120). Account is to be taken of the fact that the members reading the report will have local knowledge.

The knowledge of the readership of a report is a matter of particular note when it is addressed to the members of a planning committee. Such members not only have local knowledge of the factual background but also a degree of knowledge of “development planning policies or matters of planning history” (Fabre supra). In addition in the context of a planning committee “the members themselves can be expected to acquire a working knowledge of the statutory test” (per Pill LJ in R v Selby DC ex p Oxton Farms at [2017] PTSR 1103 1110 G in the context of the statutory requirement that planning applications be determined in accordance with the relevant development plan subject to material considerations to the contrary).

Here the Decision was made by the Cabinet of the Defendant and not by its planning committee. I proceed on the basis that the members of the Cabinet would have had involvement in some planning matters from time to time (the Decision is an instance of this). However, they would not have had the regular, repeated, and detailed involvement which the members of the planning committee would have had and which was the kind of involvement which would have given the members of that committee the “working knowledge” to which Pill LJ referred. It cannot be assumed that the members of the Cabinet had a working knowledge of the definition of development for the purposes of the TCPA without being reminded of it. It cannot, therefore, be assumed that they would have known, without being told, that only material changes of use fell within the control of the planning system and that the removal of permitted development rights would not enable the Defendant as local planning authority to control the change of use from a dwelling house to use as a second home or for commercial holiday letting unless that amounted to a material change of use.

Taking account of the readership of the reports must also take account of the approach which those readers can be expected to have taken to the reports. Here the members of the Cabinet are to be taken to have read the Officers’ Report and the accompanying documents with care and to have had due regard to the seriousness of the decision being made. Regard must also be had, however, to the pressures on their time (see in that regard Sullivan J’s point in Fabre that it is important for a busy committee not to be over-burdened with excessive or unnecessary detail). Here, the Officers’ Report and the accompanying papers in relation to the Decision ran to 200 pages. The Cabinet members were not reading the Officers’ Report and the other documents in the way in which a lawyer would study a contract or a statute. Instead, they were reading those documents with a view to receiving guidance on the nature and effect of the decision to be made; the test to be applied; the issues to be considered; and the factors which were to be taken into account.

The Cabinet members did not need to put into a position where they could write a legal analysis of the operation of the article 4 direction. However, they did have to know the nature and effect of the decision being made. That required them to know, at least in broad terms, what that effect was and what it was not. They needed, therefore, to be informed, again in general terms, which changes would be controlled after the making of the direction and which would not be. That was because one of the matters which had to be considered was the proportionality of the impact which the direction had on the Article 1 Protocol 1 rights of property owners. In order properly to assess that the Cabinet had to know, at least in broad terms, the effectiveness of the direction in achieving its objectives. That was needed so that the members of the Cabinet could form an assessment of whether the improvement which would be achieved by making the direction justified the adverse effects (and also to know the extent of those adverse effects).

It is against that background that I turn to consider whether the Officers’ Report and the accompanying documents were materially misleading such as to cause the Cabinet to proceed on a false basis and to fail to have regard to a material consideration. Putting the issue more shortly: did those documents adequately explain the nature and effect of the making of the article 4 direction?

Several factors operate in favour of the Claimant and the contention that the Officers’ Report and accompanying documents were materially misleading. The first is the tenor of the material read as a whole which gives a strong indication that all changes would be controlled. This is supported by the contrast to be drawn between the clear explanation in the Explanatory Memorandum at [4.4] to the effect that permission would only be needed for material changes of use and the absence of such an explanation in the documents provided to the Cabinet. In addition, the only reference to a material change of use was in the treatment of theme 34 in the analysis of the outcome of the engagement exercise. On behalf of the Defendant reference is made to the explanation in theme 34 as demonstrating that the Defendant’s officers were aware of the correct position and the court should, the Defendant says, read the documents in light of that understanding. In addition Mr Hunter pointed out that in the GPDO itself reference is made to changes of use without use of the word material even though those drafting that document were clearly aware that only material changes of use amounted to development. He contended that references in the papers presented to the Cabinet to development and to changes of use were to be seen as references to those as technical concepts and that they would have been understood as such (and so as carrying with them the implication that a change of use which was not material would not be development and would not be controlled).

It is necessary to stand back and to look at the documents in the round and realistically. When that is done it is apparent that the Officers’ Report and the accompanying documents materially misled the members of the Cabinet. The making of the article 4 direction gave the Defendant control over changes between classes C3 and C5 and C6 which were material changes of use but not between such changes which were not material. That was a significant difference in circumstances where, as explained in Moore, not every change from a private residence to commercial letting would be a material change of use. The members of the Cabinet needed to be made aware that the article 4 direction did not bring non-material changes of use within the scope of planning control. The papers did not do that but instead, when read realistically, gave the incorrect impression that all changes would be controlled. The contrast between the clear terms of the Explanatory Memorandum and the terms of the Officers’ Report is striking. There were repeated references in the documents of which the only realistic reading was that all changes were being controlled. It is also of note that the letter that was sent to residents said in terms that any change of use would require planning permission. The false impression given by the documentation as a whole was not remedied by the sole reference to a material change of use in the treatment of theme 34 of the engagement exercise. The position was also not remedied by the fact that section 3 of the research paper presented to the Cabinet in December 2020 had been a correct statement of some of the applicable principles. The Claimant has shown that only two of the eight Cabinet members engaged in the Decision had been at the meeting when the research paper was considered which was in any event 3½ years earlier. I note that one further member present in July 2024, Dilwyn Morgan, had sent his apologies in respect of the earlier meeting and so can be taken to have been provided with the research paper. In any event section 10 of the research paper proceeded on the basis that if an amendment of the UCO were to be made planning permission would be needed for all use of dwellings for holiday accommodation and to that extent it was misleading.

The position, therefore, is that the members of the Cabinet were materially misled on a matter bearing on the Decision which was, therefore, reached on a false basis. The Decision is to be quashed unless relief is precluded by section 31(2A) of the Senior Courts Act 1981.