CA-2024-001414 - [2025] EWCA Civ 927

There were originally three limbs to this Ground, but by the time of the hearing of the appeal they had been reduced to two. Ms Moakes originally sought to argue that the Judge was wrong to require her to prove that she had suffered real prejudice, because a breach of the constitution automatically rendered the decision unlawful and liable to be quashed. However, that argument was abandoned in the light of the judgment of this court in R(Bradbury) v Brecon Beacons National Park Authority [2025] EWCA Civ 489. My Lord, Lewis LJ gave the leading judgment in that case, with which Holgate LJ and Nicola Davies LJ agreed.

In Bradbury, the underlying complaint was that there was a failure to provide appropriate assessments under the Conservation of Habitats and Species Regulations 2017 to the planning committee which considered the applications for planning permission, and thus the committee did not consider those assessments before granting the permission, as required by regulation 63(5) of those Regulations. Moreover, there was a failure to publish those assessments prior to the meeting of the planning committee, in breach of the requirements of section 100D of the Local Government Act 1972. It was claimed that the members of the committee were thereby deprived of the consideration of highly material evidence, and interested parties were prevented from commenting on the assessments.

The assessments concluded that certain adverse environmental effects could be avoided if specific planning conditions were imposed on the grant of permission. The proposed conditions happened to be materially identical to the conditions that were in fact imposed by the planning committee when it resolved to grant planning permission. It is therefore unsurprising that the judge who heard the claim for judicial review concluded that if the assessments had been published and put before the committee, the outcome would have been the same.

Although the Court of Appeal dismissed the appeal, Lewis LJ made it clear at [49] that the question whether the failure to comply with a procedural requirement results in the decision being unlawful is analytically distinct and should be considered separately from the question whether a remedy should be refused, either pursuant to section 31(2A) of the Senior Courts Act 1981, or as a matter of judicial discretion. Although the shortcut taken by the judge in that case made no difference to the result, strictly speaking he should not have moved directly from deciding that there had been a breach of the statutory requirements to a consideration of the application of section 31(2A), because that omitted an essential stage of the analysis. He should have considered whether the identified breach(es) of the statutory requirements had caused any prejudice. Section 31(2A) of the 1981 Act is not engaged unless and until a public law error (the “conduct” referred to in that section) has been established.

In fact, as Lewis LJ went on to explain, there was no prejudice in that case because the absence of the assessments did not affect the ability of the appellant or any other member of the public to make representations about any material issues (irrespective of whether those issues arose out of or were connected with the assessments.) The fact that the assessments were not made or published had no effect on the decision-making process.

The decision in Bradbury is the latest in a long line of authorities which have confirmed the principle that the breach of a procedural rule, whether enshrined in statute or (as in this case) in a procedure adopted by a public body, even if expressed in mandatory terms, is a form of procedural impropriety and will not necessarily render the resulting decision unlawful. In order to establish that there has been procedural unfairness, the claimant must establish that they have suffered material prejudice: see the cases cited by Holgate J in R(ClientEarth) v Secretary of State for Business, Energy and Industrial Strategy [2020] EWHC 1303 (Admin); [2020] PTSR 1709 at [241] and the more recent cases cited by the Judge at [66]. As Lord Wilberforce observed in Malloch v Aberdeen Corporation [1971] 1 WLR 1578 at 1595:

“A breach of procedure, whether called a failure of natural justice, or an essential administrative fault, cannot give [a claimant] a remedy in the courts unless behind it there is something of substance which has been lost by the failure.”

For the avoidance of doubt, to the extent that it was suggested in R(Blacker) v Chelmsford City Council [2021] EWHC 3285 (Admin) that a breach of the constitution would be enough to render a decision to grant planning permission unlawful and liable to be quashed, that is not a correct statement of the law. In fairness to the judge in that case, the point does not appear to have been argued. The judge’s brief remarks were made per incuriam (as none of the relevant authorities was cited), and they were obiter, because on the facts of that case it was found that there was no breach of the constitution.

The argument that section 31(2A) of the 1981 Act had displaced the requirement to show material prejudice in such circumstances was rejected (and shown to be based on a mistaken premise) by a constitution comprising Sir Keith Lindblom, Senior President of Tribunals, and, as it happens, both my Lords, in R(Save Stonehenge World Heritage Site Ltd ) v Secretary of State for Transport [2024] EWCA Civ 1227; [2025] PTSR 726, at [74] and [75]. That message was reinforced in Bradbury in the passage to which I have already referred.

The surviving limbs of Ground 1 were:

On behalf of Ms Moakes, Mr Ben Fullbrook submitted that the Judge took too narrow a view of prejudice. He took issue with the respondents’ contention that the finding that Ms Moakes had not been materially prejudiced was a finding of fact, and that the court should therefore take the conventional approach of an appellate court to a judge’s fact-findings based on the judge’s evaluation of the evidence, helpfully articulated in the planning context by Sales LJ in Smech Properties Ltd v Runnymede Borough Council and Others [2016] EWCA Civ 42 at [29] and [30].

Mr Fullbrook relied on the decision of the Court of Appeal in Abbey Mine Ltd v The Coal Authority & Another [2008] EWCA Civ 353 in which it was held that the judge in that case was required to decide the ambit of the duty of fairness owed by a public body in particular circumstances. Laws LJ, who gave the leading judgment, said at [27] that this was not a question of “mixed law and fact” but a matter of principle which was open to full reconsideration by the appellate court.

The decision in the Abbey Mine case involved the exercise of discretion by the Authority to grant a licence to mine coal in a specific part of Wales to Corus, a competitor of the claimant, Abbey Mine, which had also bid for the licence. Laws LJ’s remarks were made in the context of a complaint that it was procedurally unfair for the Authority not to have disclosed to Abbey Mine the details of Corus’s rival application (subject to redaction of sensitive confidential information). That complaint was dismissed by the Court of Appeal on the basis that in a situation where two or more persons are tendering or bidding for a licence, procedural fairness required that an applicant should be told of the decision-maker’s concerns about his own case, but not about the details of his rival’s case.

This case is very different from Abbey Mine. It is not about what, as a matter of principle, procedural fairness requires (or does not require) in a specific context. The Judge referred to the principles governing public speaking at planning committee meetings at [25]. It is well-established that at common law, procedural fairness does not require the planning authority to afford members of the public the right in every case to make oral representations on a planning application. The question whether there has been procedural unfairness if someone is precluded from making oral representations is fact sensitive and falls to be decided on a case by case basis. In the present context, I consider that little assistance is to be derived from cases about denying an individual who is the subject of a prospective decision (e.g. a decision to employ them or to discipline them) the opportunity to consider adverse evidence and put their case in answer to it before a final decision is taken.

Whilst it is under no general obligation to do so, if the planning authority voluntarily provides for a process for speaking at a meeting, it is obliged to ensure that the adopted process is fair: R(Citizens UK) v Secretary of State for the Home Department [2018] EWCA Civ 1812 at [86]. In the present case, the Council’s constitution struck a fair balance between the democratic rights of proponents of and objectors to a proposed local development to have their say, and the need to get on with Council business, and the contrary has not been suggested. The provisions of the constitution made allowance for even numbers of supporters and objectors to be heard, but there was no guarantee that even numbers on each side of the debate would register to speak in any given case. The Judge was entitled to find, as she did at [75], that there was no evidence that the Committee’s decision was unbalanced by the fact that it heard oral representations from more supporters than objectors.

This case was about whether, on the facts, the breaches of the constitution found by the Judge gave rise to any procedural unfairness. That in turn depended on whether Ms Moakes was materially prejudiced by the fact that two people other than herself did not speak at the meeting, or to put it more specifically, whether she was materially prejudiced by the fact that CPRE Kent did not register to speak at the meeting, and by the fact that NE did not occupy a separate three minute speaking slot from the AONB Unit.

As HH Judge Behrens recognised in R(Embleton Parish Council) v Northumberland County Council [2013] EWHC 3631 (Admin); [2014] Env LR 16, it is only in rare cases that a claimant who has been afforded the opportunity to speak (and declined it) can complain of a failure to afford the same opportunity to others. In that case, the complaint was made that the National Trust had not been told of the date of the meeting of the planning committee. Unlike NE in the present case, the National Trust had expressed no interest in attending the meeting, but that was not the only reason why that complaint failed, and it is the only point of substantive distinction between that case and this. The National Trust had written two letters of objection; its objections had been drawn to the attention of the committee by a person who did speak at the meeting; the committee were fully aware of the substantial objections, no-one had identified what (if any) additional points the National Trust would have made, and the National Trust had been party to a pre-action protocol letter but had expressly declined to get involved in the claim for judicial review.

Although Dr Newport and Ms Twizzell complained to the Council that they felt it was unfair that individuals who spoke in favour of the proposals at the meeting did so in a representative capacity, whereas they believed they could not do so if they took one of the individual speaking slots, it is telling that neither NE nor CPRE Kent claim that they were prejudiced in any respect by the fact that they lost the opportunity to speak against the proposed development. NE took no steps towards seeking a judicial review of the decision. Dr Newport’s evidence is that CPRE Kent went as far as instructing a solicitor and counsel to draft a pre-action protocol letter, but its trustees then decided they could not afford to proceed with a full judicial review. CPRE Kent supported Ms Moakes’ claim in principle, but not financially.

The Judge, who has a planning background, was in the best position to evaluate whether there was any material prejudice, and her view that there was none is to be afforded considerable weight. It was a view that in my judgment she was entitled to take. I agree with the respondents that the correct approach for this court to take in respect of that finding is the one set out in Smech Properties. But even if this court were to take the approach in Abbey Mine of deciding the question for itself, I would still reach the same conclusion as the Judge. There was no procedural unfairness here.

Ms Moakes was not prevented from speaking; she had the opportunity to do so but chose not to register to speak against the proposal because she was aware that CPRE Kent intended to register. There is no evidence that she took any steps to find out if they had registered. Taken at its highest, her evidence is that she made an assumption that someone else would register and speak to CPRE Kent’s objections, which she shared. She took a risk that, for whatever reason, this would not happen – for example, that the slots would all be allocated to other objectors, or that CPRE Kent might take the view that they need not address the committee because other organisations were going to do so and they would raise the same points. There is no evidence that Ms Moakes knew anything about the discussions between Dr Newport and Council officials prior to the meeting or saw the email correspondence between them.

There is equally no evidence that Ms Moakes was in any way disadvantaged or worse off as a result of the fact that Dr Newport did not speak at the meeting. All her objections had already been clearly articulated. The substance of her concerns about the development was not materially different from the concerns of NE and the AONB Unit which were articulated orally by Ms Miller. As the Judge pointed out at [69] neither Dr Newport nor Ms Moakes provided any evidence as to what they would have said to the committee. The question whether they would have added anything to points made by others is a relevant consideration; there is no evidence that they would have done. Their objections had been provided in full written representations. It was expressly accepted by Mr Fullbrook that NE’s views were fairly summarised in the OR and Addendum OR, and he never suggested that CPRE Kent’s views, which aligned with those of Ms Moakes, were not fairly and accurately represented in those documents. It is of some significance that both NE and Ms Moakes had specifically availed themselves of the opportunity to take issue with the OR, in writing, prior to the meeting. Quite apart from the representations made by CPRE Kent, Ms Moakes had personally submitted a written representation on 25 July 2023 which commented on the analysis in the OR. CPRE Kent’s letter about the decision in the Medway appeal had been circulated to all committee members in advance of the meeting.

There is no evidence that Ms Miller omitted to say something that NE (or CPRE Kent) would have wished to say to the committee, and no evidence that anything new (apart from the decision in the Medway appeal) had come to light that CPRE Kent or NE would have wished to draw to the committee’s attention and could not because they were unable to speak.

Ultimately, when asked to identify what the prejudice was, Mr Fullbrook was driven to submit that there was prejudice because CPRE and NE “were denied a substantive right that they intended to exercise”, i.e. because they wanted to speak. That, he said, was different from the denial of a right that they did not intend to exercise, as in Embleton, or a case where there is no evidence that an objector would have done anything with documents that a statute or statutory instrument required the decision-maker to provide them with prior to the meeting. However, that argument is no different in substance from the argument that the breach of the constitution was enough in itself to make the decision unlawful, because the breach complained of consisted of denying someone an opportunity to speak in circumstances where they wished to do so. If Dr Newport and Ms Twizell had not wished to register to speak, there would have been no breach of the constitution. Limb (i) of Ground 1 was expressly abandoned, and it cannot be resurrected by the back door.

Mr Fullbrook relied, as he did in the lower court, on R (Kelly) v London Borough of Hounslow [2010] EWHC 1256 (Admin), but, as the Judge said at [71] that was a very different case. In Kelly the application for planning permission concerned a residential extension; the claimants were directly affected next-door neighbours, and the grounds of objection raised issues concerning residential amenity as well as issues about the impact on the local conservation area. Only a limited number of directly affected persons were consulted in the first place. Mr Kelly had been expressly told by the planning authority that if he registered an objection, he would be notified of the date of the planning committee meeting – against a background of a policy that such notification would give him the opportunity to register to speak if the planning officer’s recommendation was in favour of granting permission. At the time when he was consulted about his neighbour’s planned extension, he had no idea what the recommendation was going to be. As a result of what the judge described as “an unfortunate concatenation of circumstances which, no doubt, will rarely be repeated in other cases” Mr Kelly was notified far too late to be able to avail himself of the promised opportunity to attend the meeting and address the committee. The case was put on the basis of a breach of a legitimate expectation although it could also be regarded as one of procedural unfairness.

It is easy to see why the judge found on the facts of Kelly that there had been material prejudice. As he recognised, the meeting was the only chance the claimants had to persuade the committee not to accept the planning officer’s recommendations. It would have been their first and only opportunity to address the reasoning for the positive recommendation in the OR, and it was intended by the council that they should have that opportunity. Moreover, Mr Kelly was in a unique position to be able to explain to the committee members the impact that the proposed development would have on his property. No-one else raised the same concerns about that impact. There was no evidence in that case that anyone else objecting to the proposal addressed the planning committee.

By contrast with Mr Kelly, Ms Moakes had no personal stake in the decision; the expansion of the Business Park had no direct impact on her property. Neither Ms Moakes nor CPRE Kent (nor NE) are any more affected by this development than anyone else. All three had already been given ample opportunity to persuade the planning committee not to accept the recommendations in the OR and had done their best to do so in their written submissions.

I do not read Kelly as purporting to lay down any principle of wider application. It is not authority for the proposition that the loss of an opportunity to persuade a committee to refuse a planning application amounts to prejudice in and of itself. In the present case, as I have pointed out, the loss of the opportunity to persuade (orally) is simply another way of describing the breach of the constitution, which was that CPRE Kent was denied the right to address the committee orally as it wished, and NE was unable to make its points itself instead of through the AONB Unit.

Mr Fullbrook submitted that because NE was a statutory consultee, denying them the opportunity to speak against the proposal at the meeting was sufficiently prejudicial to demonstrate procedural unfairness or was prejudicial to the appellant’s interests which were aligned with that of NE, notwithstanding that NE’s objections were expressed by Ms Miller, and NE had not sought judicial review of the decision on that (or any other) basis. I am unable to accept that submission. The Judge was right to reject it for the reasons she gave at [73] and [74]. There is no suggestion that Ms Miller did not properly articulate NE’s objections. There was no evidence that the fact that NE did not get a further three minutes in which to address the committee in addition to Ms Miller had any effect on Ms Moakes’ position, let alone a detrimental effect.

The truth is that once the first limb of Ground 1 was jettisoned, the remaining limbs were bound to fail, because in essence they were different ways of articulating the same argument.