Tesco Stores Limited, R (on the application of) v Reigate and Banstead Borough Council [2024] EWHC 2327 (Admin)

“There is no objection to the loss of the existing community asset. It is accepted that the existing store is restricted in terms of its operations and a replacement supermarket would improve the shopping experience for some Lidl customers. A key test is however whether this site is sequentially preferable given its out of town centre location and whether the impact on the vitality and viability of the town centre and local centres and future investment in those centres is significantly adverse. It is accepted that the site is sequentially preferable with no other alternative sites identified which are either within the town centre or closer than this edge of centre location. It is concluded that the closure of Lidl and its relocation to the application site will cause an adverse impact. The negative impacts concern loss of a large convenience retailer reduced turnover and the potential for a large vacancy. The question is whether the level of impact is significantly adverse that would warrant a refusal of planning permission. Overall, it is the view of officers, following independent planning advice from Q+A Planning Ltd (see Appendix A for full response) and consideration of information submitted from the applicant and third parties, that this adverse impact will not be significantly adverse. In terms of the impact on the character of the area and heritage assets it is considered that there would be substantial harm to the locally listed building (air balloon pub) due to its complete removal, and there would be less than substantial harm to a designated heritage asset (setting of grade II listed war memorial) due to the unsympathetic scale, form and layout of the proposed supermarket and complete loss of a non-designated heritage asset (the air balloon pub). Therefore the development is contrary to criteria 1 of DMP policy NHE9 which requires development to protect, preserve, and wherever possible enhance, the Borough’s designated and non-designated heritage assets. Criteria 3 of policy NHE9 states that the Council will give great weight to the conservation of the asset, irrespective of the level of harm. This is in line with paragraph 199 of the NPPF. In terms of the complete loss of the non-designated heritage asset criteria 5 of the policy NHE9 states that “In considering proposals that directly or indirectly affect other non-designated heritage assets, the Council will give weight to the conservation of the asset and will take a balanced judgement having regard to the extent of harm or loss and the significance of the asset.”

“7.19 Since the receipt of the report from Q+A the applicant has also confirmed that they have been marketing their existing store. As of March 2023 they have received interest form 7 organisations (4 fitness/leisure, two retailers and a charity). Lidl are therefore confident that the site can be successfully let. 7.20 The applicant has also submitted letters from both Lidl and Green King (who own and run the Air Balloon pub) regarding the future of their existing operations. In the case of Lidl they are clear that the existing site is no longer fit for purpose and it is not feasible to continue operations in the current building. Were the planning application to be refused the future of Lidl in Horley is said to be at risk. In terms of the Green King letter they advise that the Air Balloon site does not have an operational future in the current use and irrespective of the outcome of this application they would have little option but to close the premises. 7.21 Taking into account the independent Q+A report, all the submissions and the submitted letters officers considered that the relocation of the existing Lidl store to the Air Balloon site whilst causing harm to the town centre would not be to such an extent that it would cause significant adverse impact.”

“7.27 Where the proposal will lead to less than substantial harm to a designated heritage assets criteria 3 c. of policy NHE 9 states that harm will be weighed against public benefits of the proposal. The Conservation Officer’s view is that the public benefits do not outweigh the harm. In support of the application the relocation of Lidl would result in an improved shopping experience and improved retail offer for residents and there would be potential for 15 additional staff to be taken on top of those existing jobs transferred from the existing store. The consultation exercise carried out by Lidl also shows that the majority of the responders (92%) expressed support for the new Lidl (though that is not replicated in the responses made to the Council’s on the planning application). The construction of the supermarket would create jobs. The vacation of the existing store also provides the opportunity for new jobs linked to the new tenancy. The building will also be more sustainable than the existing store in town. The applicant also contends that it would provide a quantitative and qualitative improvement to the Limited Assortment Discount (LAD) grocery offer in Horley and will not result in any significant adverse impact on existing stores. 7.28 In terms of benefits whilst the above factors do weigh in favour of the application the weight of the benefits is tempered by the finding in the retail section above that whilst there is not a significant adverse impact on the town centre there is still found to be harm to the town centre due to the loss of Lidl to an edge of centre location. Given the challenges faced by Horley as a centre and as we continue through a difficult retail market environment, even a less than significant harmful retail impact still weighs against the scheme. The additional jobs created also has to be balanced against the fact that the existing pub use will cease resulting in the loss of the equivalent of 16 full-time jobs. The sustainability of the building is positive to the scheme and is an improvement to the existing store however the proposal would not replace the existing store, which still remains, and the proposal would result in the complete removal of an existing building and erection of a new building. Such activities would in themselves cause some harm to the environment due to the new resources required to erect the supermarket and any new tenant for the old store would still be faced with the same environmental challenges as before. In terms of the consultation results from Lidl’s survey the significant support has to be seen in the context of the leaflet sent out by Lidl which puts doubt on the continued trading of the store. 7.29 Therefore the starting point is that great weight is given to the protection of designated and non-designated heritage assets. Section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990 also applies a legal obligation to all decisions concerning listed buildings. When making a decision on a planning application for development that affects a listed building or its setting, a local planning authority must have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses. Preservation in this context means not harming the interest in the building, as opposed to keeping it utterly unchanged. 7.30 Historic England advise that the Court of Appeal decision in the case of Barnwell vs East Northamptonshire DC 204 (ref. 2) made it clear that in enacting section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 Parliament’s intention was that ‘decision makers should give “considerable importance and weight” to the desirability of preserving the setting of listed buildings when carrying out the balancing exercise. 7.31 Based on the above assessment and consideration of the public benefits I do not consider that the benefits would outweigh the great and considerable weight afforded to the identified harm to the designated and non-designated heritage asset. The proposed form and scale of the building and complete removal of all existing trees and landscaping would also fail to promote and reinforce local distinctiveness and respect the character of the surrounding area, including positive physical characteristics of local neighbourhoods and the visual appearance of the immediate street scene. The proposal would therefore fail to comply with policy NHE9 and DES1 of the Development Management Plan and the requirements of the NPPF.”

“Summary and balancing exercise 7.76 There is no objection to the loss of the existing community asset. It is accepted that the existing store is restricted in terms of its operations and a replacement supermarket would improve the shopping experience for Lidl customers. The key test is however whether this site is sequentially preferable given its out of town centre location and whether the impact on the vitality and viability of the town centre and local centres and future investment in those centres is significantly adverse. 7.77 It is accepted that the site is sequentially preferable with no other alternative sites identified which are either within the town centre or closer than this edge of centre location. It is concluded that the closure of Lidl and its relocation to the application site will cause an adverse impact. The negative impacts concern loss of a large convenience retailer reduced turnover and the potential for a large vacancy. The question is whether the level of impact is significantly adverse that would warrant a refusal of planning permission. Overall, it is officers view that this adverse impact will not be significantly adverse. 7.78 In terms of the impact on the character of the area and heritage assets it is considered that there would be substantial harm to the locally listed building (air balloon pub), due to its complete removal, and there would be less than substantial harm to a designated heritage asset (setting of grade II listed war memorial) due to the unsympathetic scale, form and layout of the proposed supermarket and complete loss of a non-designated heritage asset (the air balloon pub). Therefore the development is contrary to criteria 1 of DMP policy NHE9 which requires development to protect, preserve, and wherever possible enhance, the Borough’s designated and non-designated heritage assets. Criteria 3 of policy NHE9 states that the Council will give great weight to the conservation of the asset, irrespective of the level of harm. This is in line with paragraph 199 of the NPPF. In terms of the complete loss of the non-designated heritage asset criteria 5 of the policy NHE9 states that “In considering proposals that directly or indirectly affect other non-designated heritage assets, the Council will give weight to the conservation of the asset and will take a balanced judgement having regard to the extent of harm or loss and the significance of the asset.”

“Reason for refusal 1. The proposed development by reason of the complete loss of the locally listed Air Balloon Pub (a non-designated heritage asset) and the unsympathetic scale, form and layout of the proposed supermarket, would result in substantial harm to a designated heritage asset (setting of Grade II listed war memorial). Having considered the benefits of the scheme put forward by the applicant it is considered that there are no public benefits or material considerations which outweigh the great and considerable weight afforded to the identified harm to the designated and non-designated heritage assets (as dictated by Section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990, the NPPF and policy NHE9 of the Development Management Plan). The proposal would therefore be contrary to Policy NHE9 and DES1 of the Council’s Development Management Plan 2019 and paragraphs 199 to 203 of the NPPF.”

“With regard to the reference by the Conservation Officer in their comments (paragraph 7.25, Page 31, third paragraph down of the Committee Report), to the recent exercise by the applicant looking at but rejecting some alternative options, for ease this document from the applicant is attached at Appendix B. At paragraph 7.25 the Conservation Officer has noted that they have included a typo in their quoted consultation response. At page 31 of the agenda, third paragraph down, the Conservation Officer meant to say: “In regard to the other two proposals these were rejected by the applicant due to the reduction in car parking and the loss of service access. However, I consider that if a smaller footprint scheme as has occurred elsewhere were used then potentially these issues could be overcome.”

“In considering planning applications that directly or indirectly affect designated heritage assets, the Council will give great weight to the conservation of the asset, irrespective of the level of harm” and at 3(c), “Where less than substantial harm to a designated heritage asset would occur as a result of a development proposed, the harm will be weighed against the public benefits of the proposal”

“In considering proposals that directly or indirectly affect other non-designated heritage assets, the Council will give weight to the conservation of the asset and will take a balanced judgment having regard to the extent of harm or loss and the significance of the asset.”

“The Borough Council, with the assistance of the County Council and local organisations, has compiled a comprehensive list of buildings of local interest to supplement the Statutory List. The Borough Council will seek to ensure that buildings of local architectural or historic interest are not demolished and that their inherent qualities are taken into account in considering proposals which may affect them.”

“Therefore, the starting point is that great weight is given to the protection of designated heritage assets. Section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990 also applies a legal obligation to all decisions concerning statutory listed buildings. When making a decision on a planning for development that affects a listed building or its setting, a local planning authority must have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses. Preservation in this context means not harming the interest in the building, as opposed to keeping it utterly unchanged.”

“The Addendum sets out the relevant heritage tests that Members have to consider, great weight is given to the impact on the setting on the designated heritage asset. The complete loss of the non-designated heritage asset is considered to cause substantial harm to the heritage asset , and this substantial harm must be weighed against the public benefits. In this case, Officers consider that it should be given great weight. The benefits and material consideration are not considered to outweigh the great weight afforded to the identified harm to the designated and non-designated heritage assets. And also just to note again that the Addendum does include the slightly updated reason for refusal.”

“The particular significance of any heritage asset needs to be considered and, in this case, only a very small part of the existing building is from the late 18th century. Externally it has been subject to unsympathetic extensions with staff ashtrays and external air condition units now adjoining the only remaining original façade. Internally, the entire building has been stripped and there are no heritage features remaining. If Heritage England’s own criteria for local listings were applied, this building would not meet the test. Despite this we attempted to incorporate original elements of the façade into our proposal. This left the development economically and operationally unviable. We remain committed to honour the site’s history through on-site signage and other artwork. Our view is that the War Memorial is already subject to harm by its location adjacent a busy road and signalised junction with large warehouse buildings immediately opposite. Nonetheless, we altered our elevations from our standard design to soften any impact from the building and to tie in more sensitively with local surroundings, we added more trees to improve screening, and if Members are minded to over-turn, we are happy to review further and will take every opportunity to maximise tree screening and biodiversity. This is addition to the public realm pedestrian improvements between the site and our existing store requested by SCC Highways. By refusing consent tonight, Members will not be maintaining the status quo. Greene King’s letter to the LPA confirms that the premises will close irrespective of this application. Lidl’s own Property Director wrote to Officers to confirm that our existing store is no longer fit for purpose, and that its continue with trading cannot be guaranteed. Members will be aware that we recently shut two underperforming stores in the south, Canterbury and Gosport, and elsewhere in Surry, Camberley will be closing this Sunday. If on assessment of all the information put to you tonight, members feel in the planning balance that this application can be consented because of its economic regeneration benefits and additional jobs, may I respectfully request that you move a recommendation for approval and defer to Case Officers and the Chair to agree conditions, thus safeguarding access to discount groceries in Horley during the cost of living crises and upholding the wishes of those 91% of residents in support of our proposals …”

“Steven Lewis (Development Manager): Michael [the planning officer] will come back on some of those technical points, I think it might be a good point in debate to perhaps cover some of these issues that have cropped up several times over pricing, over heritage and those kinds of things. Now I want to be clear what when you look at this, this evening, as decision makers you have to weigh your own judgment of those things (issues such as pricing and heritage), however, the Government do give you advice via the NPPF and Officers will repeat those about what weight you should give to those, ultimately if you decide that the other benefits of the scheme outweigh those then that is a judgment you are entitled to make and one you should make as a decision maker, so I will run through some of those in a moment. With respect of pricing, occupancy, all those other issues, first up I will say, while Lidl are the applicant, this is not a store that will be tied to Lidl, anyone could operate from there, and Lidl may have a contract or otherwise in order to occupy that but should the supermarket or the store be built in the future, it could reasonably be occupied by somebody else, in the same way that the same operating company may change their pricing plans and may change entirely their means of operation, so I would ask members to very seriously consider not giving substantial weight or great weight to pricing and those other issues because that’s not what’s being asked, what’s being asked is this being a retail store. With respect of the heritage part, I think it’s worth just running through what the advice and what those tests are so that it is clear when you are considering the other points that you have considered those and if you are still minded that you are thinking that those things outweigh them then at least you know you have considered the right tests. So the first thing I will point out is the War Memorial statutory listed Grade II, what the Government advice within paragraph 199 of the National Planning Policy Framework, is when considering the impact of a proposed development on the significance on a designated heritage asset, great weight should be given to the asset’s conservation and the more important the asset, the more weight it should be. This is irrespective of whether any potential harm is substantial total loss, or less than substantial harm to the significance, so you must give great weight to the statutory listed building. Now when we move onto that, the Conservation Officer has explained within the Report and Michael [the planning officer] has too, respect of what he finds less than substantial harm, which should be given great weight and that is set out in paragraph, let me just look at my notes, paragraph 202 in the National Planning Policy Framework. That says where a development or proposal will lead to less than substantial harm to the significance of a designated heritage asset, the harm should be weighted against the public benefits of the proposal including, where appropriate, securing its optimum viable use. Now, obviously, the war memorial does not have a use in that way, but this is about its setting and its impact. So, essentially what we are saying is that there needs to be a public benefit which outweighs whatever level of harm within less than substantial, that you consider it to be and that is a judgment for you to make, but nevertheless, it should be given great weight. Turning to the locally listed building, that’s a non-statutory designated asset, and there are not tests set out within the guidance as to how you weigh, for example, the total destructions loss of an asset. In a designated assets, the Government set out a very clear test of how it should be. Now, the Governmental test to do with statutory listed buildings is a good starting point. This is total destruction of the asset, it will be gone, it will be no more, you may be able to record the asset but it will not be the same as it being in perpetuity. So from that point of view, Officers feel there is substantial harm to that asset, now what that says and that should be given great weight, and what the test there is that the effect of an application on the significance of a non-designated asset should be taken into account determining the application in weighing applications that directly or indirectly affect non-designated assets, a balanced judgment will be required in regard to any scale of harm or loss to the significance of the asset, which I would say is total in this case because it will be gone. So those are the tests you need to bear in mind when you are considering the other potential benefits to this scheme.”

“Councillor Bray … I am afraid I am going to have to discount a lot of the heritage stuff because I think this is too important for Horley and its local residents, that’s my final point.” … Councillor Thorne … I must say I wasn’t impressed with the applicant’s contact with the residents, it felt like a threat. However what it has done is show the care and feeling amongst the residents for this site and although the gentleman said 91%, the way it was presented it was always going to be ridiculously biased in that manner, but I don’t feel like Horley can lose Lidl. The great weight I place on the building, I just don’t think as a town we can afford to lose Lidl and their threat for me has done the job, its sad to say but I do think we need to keep them here and it might bring people from outside of the town into Lidl’s in terms of the business coming into the town centre. So, I am for it.” “… Councillor Dwight … I appreciate the Officers for coming on at this I think our protection for heritage and identity of our area are one of the reasons that make Reigate, Banstead and communities like Horley great, but we have to look at future requirements. I know we are not supposed to look at it like a future Lidl site but I will put on the cards that my dad is a huge fan of Lidl and if he was here I know which way he would vote and he is an upstanding guy and I believe the people of Horley are upstanding people too. So I can see why there are significant levels of support. … Councillor Green: … “[S]o it sounds like the obligation on us is to give great weight to potential harm to the War Memorial and so, what it really seems to boil down to me is whether we think that siting a shop on the other side of a dual carriageway from a War Memorial will have such a deleterious effect on people’s enjoyment of that War Memorial that we shouldn’t build a shop, which to me feels like a bit of a stretch, and from the people who actually live there have said that doesn’t make any sense. Then we may also consider the pub which is not statutory listed which we are then not obliged to give great weight but nevertheless the advice is something we should think about which seems perfectly reasonable to think about, and again, the people who live there are telling us they don’t really use it, its going to close anyway, and as much as I agree with others, it is a great shame to see pubs close. We are all familiar with dilapidated pubs up and down the country. So really it seems to me the decision comes down to, do we want a dilapidated pub or do we want a Lidl on this site?”

“Councillor Bray: I have to say I have been listening with great interest at the debate really tonight because my stance normally is that I like to go with our policies and what the Officer’s recommending so that’s kind of my standpoint on most of these applications. I have to say when reading the Report and listening to it being presented tonight and also the other speakers. What struck me was all of the things that you would normally expect this to be voted down on, were you know, but this hasn’t got a lot of weight to it, so you know the fact you have lorries and cars making deliveries, that seems to have been handled, all the charging points and that kind of stuff has been handled. So I am kind of left on my piece of paper really with Councillor Ritter’s point which was about the scorched earth policy that seems to be adopted on this site. I know the Tree Officer has said that these trees are not significant but collectively it is a massive ecosystem for insects, for birds and whatever and I am very concerned that they have taken sufficient action to try and keep some of it there. What they are planning to plant and add to over time, I would really like to see that conditioned, that the watering system is good enough for it all, that they have a system for replacement if things fail. So, I am trying to get away from the bucolic picture that I have in my mind that we have got a heritage, locally listed pub and across the road is a War Memorial, and I imagine everyone having a drink in the pub wandering across in November paying their respects for the fallen. That isn’t the case, we have this massive road in between, there’s no kind of connection between the two and the War Memorial itself is set in a nice area with lots of other things around it. So, I am afraid I am going to have to discount a lot of the heritage stuff because I think this is too important for Horley and its local residents, that’s my final point.”

“… Thank you Chair. There’s a lot to get through here. I agree with Councillor Blacker actually that I have quite a fondness for the building and I really didn’t want to see it demolished, however as it has been said it’s not been looked after very well in particular and I don’t see it as having a very rosy future certainly from a commercial point of view. That leaves me to believe it could end up as housing in some shape or form. …”

“Thank you very much. I am a lover of heritage and history and while your American friend Councillor Harp sadly won’t be so used to so much heritage that we are lucky to have in this country dating back many thousands of years not just a few hundred. Of course, the challenge we have with any heritage site particularly like a pub, as Councillor Thorne said a second ago, they have got to be commercially viable. As wonderful as that site is, and I have this in my day job with some of the things we try and protect, unless it’s going to have that commercial viability of people going there for whatever reasons, it’s actually not viable at all and it’s just going to waste over time. So, …”

“Councillor Green: Thank you Chair. I wonder if I could go to Michael [the planning officer] to ask about a policy question. If I followed what you said earlier correctly, you say that we should give great weight to the heritage asset on the basis that it is the policy framework for a statutory listed building, but that is not a statutory listed building and so, can I just understand the position of even though it is not a statutory listed building, you think we should treat it as a statutory listed building. Councillor Parnall (Chair): We will go to Steven [the Council’s Development Manager officer] on this one, obviously there is two sites, you have got the War Memorial site, but Steven to you. Steven Lewis (Development Manager): I think its worth me outlining again perhaps where we were and what weight you need to give, so, the first one was when considering the impact of a proposed development of the significance of a designed asset and that is on the setting of the War Memorial, you should give greater weight to the asset’s conservation and the more important the asset, the greater the weight should be, this should be irrespective of whether any potential harm or substantial total loss or less than substantial harm to its significance. In this case we have identified less than substantial harm, but you still have to give that great weight. The tests when you are considering that harm is that it should be weighed against the public benefits of the scheme and the public benefits of the scheme are for you to decide upon but some of those things could be for example, job creation, value to the economy, choice, social, that kind of thing. With respect to the non-designated asset with respect to the Air Balloon itself, it says the effect of the application and the significance of a non-designated heritage asset should be taken into account in determining the application in weighting applications directly or indirectly effect non-designated assets, a balanced judgment would be required having regard against the scale of any harm or loss to the significance of the asset. So, from the point of view because tests within the non-designated asset are not set out and there is nothing within the PPG guide, that’s the online guidance the Government provide, then Officers would advocate a good way to start is thinking about the asset itself and this being substantial harm because it’s the total loss of that asset. The Government also advises that are irreplaceable when lost and it’s Officers view that should give great weight to that as well.”

“Councillor Baker: Thank you Chairman, I have got reasons for approval if that’s ok. The development hereby permitted has been assessed against the relevant Development Plan Policies as set out in the Committee Report, and material considerations including third party representations. It is considered the public, social and economic benefits provided by the development would outweigh the less than substantial harm to the designated heritage asset, total loss of the non-designated heritage asset, the scheme’s failure to promote and reinforce local distinctiveness and respect the character of the surrounding area and the potential impact on the town centre. It is therefore concluded that the development is in accordance with the relevant policies in the Development Plan and there are no material considerations that justify refusal in the public interest. The Local Planning Authority has acted positively and proactively in determining this application by assessing the proposal against all material considerations including planning policies and any representations that may have been received and subsequently determining to grant planning permission in accordance with the presumption in favour of sustainable development where possible, as set out in the National Planning Policy Framework. Thank you.”

“A reason for approval was proposed by Councillor Baker and seconded by Councillor Bray, whereupon the Committee voted and RESOLVED that planning permission be APPROVED on the grounds that: The development hereby permitted has been assessed against the relevant development plan policies as set out in the committee report and material considerations, including third party representations. It is considered that the public (social and economic) benefits provided by the development would outweigh the less than substantial harm to the designated heritage asset, total loss of the non-designated heritage asset, the schemes failure to promote and reinforce local distinctiveness and respect the character of the surrounding area and the potential impact on the town centre. It is therefore concluded that the development is in accordance with the relevant policies of the development plan and there are no material considerations that justify refusal in the public interest. Proactive and Positive Statements The Local Planning Authority has acted positively and proactively in determining this application by assessing the proposal against all material considerations, including planning policies and any representations that may have been received and subsequently determining to grant planning permission in accordance with the presumption in favour of sustainable development where possible, as set out within the National Planning Policy Framework. Conditions to be agreed with the Ward Councillors and Chair/Vice Chair of the Committee”

“66. General duty as respects listed buildings in exercise of planning functions (1) In considering whether to grant planning permission for development which affects a listed building or its setting, the local planning authority … shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses. …”

“199. When considering the impact of a proposed development on the significance of a designated heritage asset, great weight should be given to the asset’s conservation (and the more important the asset, the greater the weight should be). This is irrespective of whether any potential harm amounts to substantial harm, total loss or less than substantial harm to its significance. 200. Any harm to, or loss of, the significance of a designated heritage asset (from its alteration or destruction, or from development within its setting), should require clear and convincing justification… 202. Where a development proposal will lead to less than substantial harm to the significance of a designated heritage asset, this harm should be weighed against the public benefits of the proposal including, where appropriate, securing its optimum viable use.”

“42. The principles on which the court will act when criticism is made of a planning officer's report to committee are well settled. To summarise the law as it stands: (1) The essential principles are as stated by the Court of Appeal in R v Selby District Council, Ex p Oxton Farms [2017] PTSR 1103 : see, in particular, the judgment of Judge LJ. They have since been confirmed several times by this court, notably by Sullivan LJ in R (Siraj) v Kirklees Metropolitan Borough Council [2011] JPL 571 , para 19, and applied in many cases at first instance: see, for example, the judgment of Hickinbottom J in R (Zurich Assurance Ltd (trading as Threadneedle Property Investments)) v North Lincolnshire Council [2012] EWHC 3708 (Admin) at [15] (2) The principles are not complicated. Planning officers’ reports to committee are not to be read with undue rigour, but with reasonable benevolence, and bearing in mind that they are written for councillors with local knowledge: see the judgment of Baroness Hale of Richmond JSC in R (Morge) v Hampshire County Council [2011] PTSR 337 , para 36 and the judgment of Sullivan J in R v Mendip District Council, Ex p Fabre [2017] PTSR 1112, 1120. Unless there is evidence to suggest otherwise, it may reasonably be assumed that, if the members followed the officer's recommendation, they did so on the basis of the advice that he or she gave: see the judgment of Lewison LJ in R (Palmer) v Herefordshire Council [2017] 1 WLR 411, para 7. The question for the court will always be whether, on a fair reading of the report as a whole, the officer has materially misled the members on a matter bearing upon their decision, and the error has gone uncorrected before the decision was made. Minor or inconsequential errors may be excused. It is only if the advice in the officer's report is such as to misdirect the members in a material way—so that, but for the flawed advice it was given, the committee's decision would or might have been different— that the court will be able to conclude that the decision itself was rendered unlawful by that advice. (3) Where the line is drawn between an officer's advice that is significantly or seriously misleading—misleading in a material way—and advice that is misleading but not significantly so will always depend on the context and circumstances in which the advice was given, and on the possible consequences of it. There will be cases in which a planning officer has inadvertently led a committee astray by making some significant error of fact (see, for example R (Loader) v Rother District Council [2017] JPL 25 ), or has plainly misdirected the members as to the meaning of a relevant policy: see, for example, R (Watermead Parish Council) v Aylesbury Vale District Council [2018] PTSR 43 . There will be others where the officer has simply failed to deal with a matter on which the committee ought to receive explicit advice if the local planning authority is to be seen to have performed its decision-making duties in accordance with the law: see, for example, R (Williams) v Powys County Council [2018] 1 WLR 439 . But unless there is some distinct and material defect in the officer's advice, the court will not interfere.”

“26. There are powerful reasons why it is desirable for administrative bodies to give reasons for their decisions. They include improving the quality of decisions by focusing the mind of the decision-making body and thereby increasing the likelihood that the decision will be lawfully made; promoting public confidence in the decision-making process; providing, or at least facilitating, the opportunity for those affected to consider whether the decision was lawfully reached, thereby facilitating the process of judicial review or the exercise of any right of appeal; and respecting the individual's interest in understanding — and perhaps thereby more readily accepting — why a decision affecting him has been made. This last consideration is reinforced where an interested third party has taken an active part in the decision making-process, for example by making representations in the course of consultations. Indeed, the process of consultation is arguably undermined if potential consultees are left in the dark as to what influence, if any, their representations had.”

“42. There is of course the important difference that, as Sullivan J pointed out in Siraj, the decision-letter of the Secretary of State or a planning inspector is designed as a stand-alone document setting out all the relevant background material and policies, before reaching a reasoned conclusion. In the case of a decision of the local planning authority that function will normally be performed by the planning officers’ report. If their recommendation is accepted by the members, no further reasons may be needed. Even if it is not accepted, it may normally be enough for the committee’s statement of reasons to be limited to the points of difference. However the essence of the duty remains the same, as does the issue for the court: that is, in the words of Bingham MR in the Clarke Homes, case whether the information so provided by the authority leaves room for “genuine doubt . . . as to what (it) has decided and why.”

“56. The first principle to make clear is that, in this country, the planning system is entrusted by Parliament to democratically elected councillors. This was made clear by Lady Hale JSC in Morge v Hampshire County Council [2011] 1 WLR 268. At para. 36 she said: “Some may think this is an unusual and even unsatisfactory situation, but it comes about because in this country planning decisions are taken by democratically elected councillors, responsible to, and sensitive to the concerns of, their local communities … Democratically elected bodies go about their decision making in a different way from courts. They have professional advisers who investigate and report to them. Those reports obviously have to be clear and full enough to enable them to understand the issues and make up their minds within the limits that the law allows them. But the court should not impose too demanding a standard upon such reports, for otherwise their whole purpose will be defeated: the councillors either will not read them or will not have a clear enough grasp of the issues to make a decision or themselves. It is their job and not the court’s to weigh the competing public and private interests involved.”” “Some may think this is an unusual and even unsatisfactory situation, but it comes about because in this country planning decisions are taken by democratically elected councillors, responsible to, and sensitive to the concerns of, their local communities … Democratically elected bodies go about their decision making in a different way from courts. They have professional advisers who investigate and report to them. Those reports obviously have to be clear and full enough to enable them to understand the issues and make up their minds within the limits that the law allows them. But the court should not impose too demanding a standard upon such reports, for otherwise their whole purpose will be defeated: the councillors either will not read them or will not have a clear enough grasp of the issues to make a decision or themselves. It is their job and not the court’s to weigh the competing public and private interests involved.””

“73. As is made clear in the case of Beebee there are real difficulties in establishing the reasoning process of a corporate body which acts by resolution. What an individual says during the debate may or may not be how he acts when he casts his vote after that debate. Many of those present at the meeting in this case made no verbal contribution. In those circumstances a court has to be extremely cautious in attaching any undue significance to a transcript of proceedings during the debate part of the decision making process. I have applied that cautious approach.”

““[I]t is necessary to approach the transcript of the committee discussions with realism as to their nature, being different in kind from the carefully formulated contents of an officers’ report, and bearing in mind the context in which they occur, namely a discussion or debate seeking to forge a collective decision. As the authorities suggest, there is a danger of focusing too closely on the contributions of one participant in the process. Similarly, in my view, there is a danger in forensically examining the ex-tempore remarks of a person responding to the discussion … doing his best to engage constructively with members’ concerns, but not attempting to provide a comprehensive and precise supplementary report in oral form.”

“The officer’s report and addendum report drew members’ attention to section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, and to the considerable importance and weight to be given to the desirability of preserving the setting of listed buildings when carrying out the heritage balancing exercise. There was no need for that analysis to be repeated in the reasons given for deciding to grant planning permission.”