Roger Howard v Manchester City Council [2025] EWHC 1047 (Admin)

Neutral Citation Number:[2025] EWHC 1047 (AdminCase No AC-2024-MAN-000264
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT AT MANCHESTER
Venue Manchester Civil Justice CentreDate 1 May 2025
Bridge Street, M60 9DJ
Before HHJ Stephen Davies sitting as a High Court Judge
Between
The King on the application of Roger HowardClaimantManchester City CouncilDefendantCurlew Alternatives Eighth Property LPInterested party
Alex Goodman KC & Joseph Thomas(instructed by Public Interest Law Centre, London E2) for ClaimantChristopher Katkowski CBE KC and Alan Evans(instructed by City Solicitors Department, Manchester M60) for DefendantKillian Garvey (instructed by CMS Cameron McKenna Nabarro Olswang LLP,London EC4N) for Interested partyHearing Hearing dates: 24-25 March 2025Draft judgment circulated: 24 April 2025Approved JudgmentThis judgment was handed down remotely at 10.30am on 1 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]On 13 June 2024 the planning committee (PC) of the Defendant, Manchester City Council (MCC), granted planning permission to the Interested Party, Curlew Alternatives Eighth Property LP (Curlew), for a multi-storey purpose build student accommodation (PBSA) building on a site in Hulme, on which the Gamecock public house had previously stood (“the decision”, “the site” and “the development”).[2]On 22 July 2024 the Claimant, Mr Roger Howard, a local resident who is opposed to the development and is a member of the local campaign group known as “Block the Block”, issued proceedings seeking judicial review of that decision. He argues that the permission is invalidated because the advice given by MCC planning officers (PO) in their written report (OR) and in their oral advice to the PC was materially misleading.[3]On 10 September 2024 HHJ Cawson KC, sitting as a High Court Judge, gave the Claimant permission to bring this claim for judicial review on two grounds.[4]Judicial review does not investigate the planning merits of the decision, which are matters for the democratically elected members of the PC to determine. Judicial review is only concerned with whether or not the decision is invalidated by some material error of public law. In this case that is said to have been the materially misleading advice complained about.[5]On 24 - 25 March 2025 the judicial review hearing took place before me. I had the benefit of written and oral submissions from leading and junior counsel for the Claimant and for MCC and from junior counsel for Curlew. I adjourned to consider my decision and I now provide this written judgment. In reaching my decision I have been greatly assisted by the clear and persuasive written and oral submissions of all counsel involved, to whom I am most grateful.[6]The answer to this judicial review depends on a careful and detailed analysis of the relevant facts, in the context of the relevant planning policies (policies) and the relevant legal principles and, in particular, Policy H12 – Purpose Built Student Accommodation, which lies at the heart of this judicial review.[7]Having considered the facts, the policies and the law, I am satisfied that the judicial review fails and must be dismissed for the reasons which I set out below. The agreed issues and chronology[8]The parties have agreed that there are three issues to be determined:[9]Issue 1 (Ground 1): Whether officers materially misled the committee that there was “no planning policy basis” for refusing the application pursuant to the committee's 16 November 2023 minded to refuse resolution.[10]Issue 2 (Ground 2): Whether officers materially misled the committee in advising that members could not refuse to grant planning permission for the application but, instead had to state they were minded to refuse the application and wait for it to be brought back to the next meeting.[11]Issue 3 (Grounds 1 and 2): Whether relief should be granted if grounds 1 or 2 are made out including consideration of whether relief should be refused on the basis of s.31(2A) of the Senior Courts Act 1981 (s.31(2A)).[12]The parties have also agreed a helpful summary of the chronology of key events, which I set out here. 2008 Permission granted on appeal for erection of a part 11 storey/ part 7 storey building comprising 42 self-contained flats with 41 parking spaces in basement, ground floor and mezzanine floor following demolition of existing public house. 2012 Planning permission refused for the erection of a part 8/ part 11 storey building comprising 48 units to provide student accommodation. 13 May 2021 The application, 130387/FO/2021, which is the subject of this claim submitted. 31 May 2022 The application came before the PC who resolved to be “minded to refuse” the application. In relation to this and successive meetings the PO produced an OR and minutes of the meeting were provided. 20 October 2022 The application came before the PC who resolved to be “minded to refuse” the application. 27 July 2023 The application came before the PC who resolved to be “minded to refuse” the application. 16 November 2023 The application came before the PC who resolved to be “minded to refuse” the application. 16 January 2024 The “Block the Block” campaign wrote to members reminding them they can refuse the application and do not have to go through the “minded to refuse” process 18 January 2024 The application came before the committee who resolved to be “minded to approve” the application. I have seen the OR produced for the meeting. There was also advice given orally at the meeting, referred to both in the approved minutes and the transcript of the meeting which has been produced. 13 June 2024 Decision Notice granting planning permission issued subject to a number of conditions. The key relevant legal principles[13]In this section I identify the key relevant legal principles which are set out and discussed in this judgment only insofar as applicable to this case.[14]Section 70 of the Town and Country Planning Act 1990 and s.38(6) of the Planning and Compulsory Purchase Act 2004 explain how, in dealing with an application for planning permission, the PC must have regard to the provisions of the development plan, so far as material, and to any other material considerations, and how that determination must be made in accordance with the provisions of the development plan unless material considerations indicate otherwise. It was, therefore, important for the PO to identify the material provisions of the development plan to the PC.[15]As is usual, the applicable development plan included a number of policies, with differing relevance to the development in question, which do not always point in the same direction, and which do not in themselves provide the answer by a tick box exercise. The same is true of other policies not included within the development plan or other matters which may be material considerations. It is, ultimately, for the court to decide what is a material consideration. However, it is a matter for the decision maker to decide what weight should be accorded to a material consideration.[16]As long as a consideration is correctly identified as material, it is a matter for the PC in the exercise of its planning judgment to decide what weight should be accorded to it. The PO can, applying their planning judgment, advise the PC what weight they consider should be accorded to a material consideration but, in the end, that is a decision for the PC to make, so long as the weight they attach is not unreasonable or irrational in public law terms. A material consideration can be anything which is relevant to the question whether the application should be granted or refused, and this may include the promotion of social objectives.[17]The Court of Appeal has given clear guidance as to the principles to be applied when faced with an allegation that a PC has been misled by advice provided by a PO, contained in the judgment of Lindblom LJ in R (Mansell) v Tonbridge and Malling BC [2019] PTSR 1452 at paragraph 42 (references omitted) as follows:
“(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: […] 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: […] 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 […] , or has plainly misdirected the members as to the meaning of a relevant policy: […] . 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: […]. But unless there is some distinct and material defect in the officer's advice, the court will not interfere.”
[18]The High Court (Mr Neil Cameron KC, sitting as a Deputy High Court Judge) has considered the application of those principles relation to the approach to advice given orally at a PC meeting in R (Lisle-Mainwaring) v Kensington and Chelsea RLBC [2024] EWHC 440:
“27. When considering a challenge based upon advice given in a planning officer's report the question is whether, on a fair reading of the report as a whole, the officer has materially misled members on a matter bearing on the decision, and the error has gone uncorrected before the decision is made. (Mansell at paragraph 42). In my judgment similar principles apply when reliance is placed on advice given orally at a committee meeting to supplement advice given in a report. In my judgment the obligation to treat advice with reasonable benevolence applies with even greater force to advice given orally at a committee meeting. In addition, unless oral advice is said to change, alter or correct advice given in writing, it is to be considered as supplementing the advice given in writing, and must be considered in conjunction with that written advice.”
[19]The High Court (Mr James Strachan KC sitting as a High Court Judge) has also considered similar points of some relevance to the present case in R (Tesco Stores Limited) v Reigate and Banstead Borough Council [2024] EWHC 2327 (Admin). In particular:
“54. The purpose of an officer’s report is not to decide an issue or to determine an application, but to inform the committee of considerations relevant to the application. The report is not addressed to parties interested in the application, let alone to the world at large, but to the members of the committee, who can be expected to have substantial local knowledge and an understanding of planning principles and policies. The Court should guard against undue intervention in policy judgments made by planning committees and respect their decisions unless it is clear that they have gone wrong in law: see Leckhampton Green Land, per Holgate J at [25]”. “64. As to making references to the debate between members of a planning committee in this respect, the Claimant accepted that there is a general reluctance to delve too deeply into such material, but submitted there was no general prohibition on referring to it”
. He then referred to a number of authorities in relation to this question. He referred to the judgment of Singh J in R (Mid-Counties Co-operative Ltd) v Forest of Dean DC [2017] EWHC 2056, where the judge had cited a number of relevant earlier authorities, and emphasised the importance of focussing on the decision rather than the statements in the debate (paragraphs 86-87), as to which caution should be exercised. He also referred to the judgment of Dove J in R(Village Concerns) v Wealden District Council [2022] EWHC 2039 (Admin), who identified at paragraph 55 that:
“It 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.”
[20]Article 35(1)(b) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 provides that: “(b) where planning permission is refused, the notice must state clearly and precisely their full reasons for the refusal, specifying all policies and proposals in the development plan which are relevant to the decision”.[21]In February 2021 MCC adopted a “Planning Protocol for Members and Officers”. The most relevant section is headed “Decisions contrary to officer recommendation”, referring to the recommendation made in the OR. “48. Members shall take decisions on planning matters in accordance with the Development Plan (or its statutory replacement) where relevant unless material considerations indicate otherwise. The reason for a contrary decision should be clear and convincing and fully minuted”. (This makes crystal clear that if the PC was to have refused permission for the development it would have had to comply with Article 35(1)(b).) “49 In order to ensure an accurate minute of decisions contrary to officer advice, members should ordinarily make a resolution that they are minded to grant or refuse permission. When such a resolution is made, officers will report to the next committee on the proposed course of action and shall produce a written record of the proposed decision and reasons for adoption by the Committee”. “50 “A senior officer shall be invited to explain to the Committee the implications of a contrary decision before the decision is taken.”[22]There has been some controversy about the meaning and effect of these provisions. Similar provisions were considered by the Court of Appeal in the case of Blacker v Chelmsford City Council [2023] EWCA Civ 25, where their purpose was described at [24] as giving the decision-maker “an opportunity to stand back and think twice about the implications of going behind the recommendations of the Planning Officer before committing itself to doing so”.[23]I accept the submission of Mr Katkowski KC and Mr Evans for MCC that, where the PC were intending to make a decision contrary to the PO’s advice and, in accordance with the above guidance, had made a “minded to refuse permission” decision to that effect, it was not the PO’s duty to accept, without further independent consideration, that the PC had made a final decision which would not change. Thus, the PO was not obliged simply to go away and provide reasons to justify that decision on the basis of a proper application of planning law, policy and other relevant material considerations, even if the PO did not believe that it was justified on that basis. Instead, what was required was that the PO, whose advice the PC was minded to reject, would have to go away and consider whether or not they could properly advise the PC that it could refuse permission on a basis which the PO believed could be justified by reference to planning law, policy and other relevant material considerations.[24]If they could do so, then they would so advise and, if the PC remained of the same opinion at the next meeting and agreed with the reasons identified by the PO, then its decision to refuse permission could give those reasons. If, however, on a further consideration, the PO concluded that they could not properly do so, they would have to advise accordingly and explain why.[25]I agree with Mr Katkowski that, in such circumstances, they were not under any obligation to the PC, as employees of the local planning authority exercising their independent judgment as planning officers, to provide reasons for the PC, if it maintained its decision in the face of the PO’s further advice, which the PO could not support.[26]As Mr Katkowski says, that would not prevent the PC from refusing permission at the next meeting on the reasons they had identified, even if the PO had made it clear that they could not support them nor identify reasons to justify that decision as being in accordance with planning law, policy and other material considerations. Instead – as paragraph 50 continued – “A senior officer shall be invited to explain to the Committee the implications of a contrary decision before the decision is taken”. In short, in such circumstances the PC would be taking the decision in the knowledge that the PO had been unable to advise that this was justified by reference to planning law, policy and other material considerations, and would have had the benefit of further advice from a senior officer before they did so.[27]As Mr Katkowski submitted, the PO was not in exercising its functions in such circumstances the mere servant of the PC, obliged to supply reasons to justify a decision which they did not consider justified the decision. Paragraph 7 of the Protocol explained that:
“Members and officers have different but complementary roles. Both serve the public but members are accountable to the electorate and officers accountable to the Council as a whole”
. Further, paragraph 13 stated: “Members are free not to follow the advice of the professional officers. Professional officers may also have a change of opinion but this must be on the basis of professional judgement; they must not be allowed to be influenced by members or other officers to change an opinion where this does not genuinely represent their professional view. The Council endorse the RTPI Royal Town Planning Institute. ’s statement that its members "shall not make or subscribe to any statements or reports which are contrary to their own bona fide professional opinions".[28]I accept that the position may not always be so binary as discussed above. There may be occasions where, despite their reservations and advising against, the PO still felt able to provide reasons which they felt professionally able to support. That is a reflection of the fact that these decisions involve the application of planning judgment to planning law, policy and material considerations where different people can rationally reach different conclusions. However, fundamentally, it was for the PO to decide, in the circumstances of the particular case, whether they could do so, and the court will not interfere unless the decision was so plainly wrong that the PC was materially misled. The position summarised[29]In the context of this case, it follows in my judgment that the criticisms of the advice given by the PO, both in the OR and orally at the meeting, must be considered in the following context, derived from the principles identified above.[30]First, the PO would need to identify and summarise in the OR the provisions of the material policies within the development plan and other material considerations. If they did so in a way which was materially misleading, and upon which it may be inferred that the PC relied in making the decision in question, so that if they had not been materially misled then they may well have reached a different decision, then the court would normally be required to set aside the decision.[31]Second, the PO would need to identify and summarise in the OR the facts and the factors of relevance to the decision. Again, if they did so in a way which was materially misleading and, again, if it may be inferred that the PC relied upon such advice in making the decision in question, so that if they had not been materially misled then they may well have reached a different decision, then the court would normally be required to set aside the decision.[32]Third, the PO would usually give advice in the OR as to their view of the merits of the planning application and recommend whether or not the application should be granted or refused, including where relevant giving advice and making recommendations as to any appropriate conditions to be included in the permission. However, it is well understood by everyone, including the members of the PC - who can be assumed to be familiar with general planning principles - that this is only advice, which the PC is free to follow or to reject. Where the advice given relates to the application of relevant policies, as opposed to its interpretation, the court does not review such advice, which is a matter of planning judgment. As long as the advice is not materially misleading the content of the advice is a matter for the judgment of the PO and it is for the PC to decide how much weight to place on it.[33]Fourth, however, if the PC rejected the PO’s advice and if it was apparent from their decision and reasons that they had failed in a material way to comply with s.70 of the Town and Country Planning Act 1990 and s.38(6) of the Planning and Compulsory Purchase Act 2004, then their decision would normally be set aside by the court on a judicial review challenge.[34]Fifth, in order to avoid the risk of this happening, if the PC decided that it did not want to follow the PO’s advice, the adoption of the “minded to” procedure would assist in avoiding the risk of such an obviously undesirable outcome, by giving the PO the opportunity to reconsider its advice in the light of the PC’s decision and to provide further advice to the PC at the next meeting. Nonetheless, the PC was not obliged to adopt the minded to procedure. The Protocol only said that this was “ordinarily” what they should do “in order to ensure an accurate minute of decisions contrary to officer advice”.[35]Sixth, in providing further advice the PO was not obliged to accept the PC’s minded to decision as being set in stone, still less to identify or provide reasons, however tenuous or plain wrong the PO might believe them to be, which could be deployed to seek to demonstrate that the decision would be in accordance with relevant policy. If, despite this, the PC decided to refuse permission on the basis that in their view the application was not in accordance with any particular identified policy or material considerations, then it was always free to state this in its reasons and it has not been suggested that the PO could in some way prevent the PC from doing so. The essential point is that the PC could not demand that the PO state that in their view refusal was in accordance with policy if that was not the PO’s view.[36]If the PO believed that the decision could not be justified in accordance with relevant policy but if, despite clear advice to this effect and of the implications of proceeding down that route, the PC was determined to do so, then that was of course their right and their prerogative. In such a case, the PO would, insofar as they felt able, assist them in identifying their reasons for the decision, but the PO could not be required to provide reasons stating that the decision was in accordance with particular policy or particular material considerations if, in their professional view, it was not.[37]Seventh, if the PO’s further advice was that the decision could not be justified in accordance with relevant policy or material considerations, then it was always possible that the PC would agree with that advice on further consideration. In such a case there might be two consequences.[38]The first might be that the PC would decide to follow the PO’s advice after all and either grant or refuse permission in accordance with that advice.[39]The second, which is of particular relevance to this case, is that the PC might still want to make the same decision but, accepting that they could not rely – or rely solely - on the reasons identified at the previous meeting as being in accordance with relevant policy or material considerations, identify further different or additional reasons for making the same decision. The same might also apply where, following the previous meeting, the applicant had made material revisions to the application with a view to seeking to overcome the reasons given by the PC for its minded to refuse decision and the PC had identified further reasons to justify its continued intention to refuse permission. In those circumstances, it would also be perfectly proper for the PO to advise that the PC should follow the minded to procedure again. That is because otherwise the PC would end up making a final decision without the benefit of any considered advice from the PO in relation to the further different reasons.[40]Again, the PC could not be forced to adopt the minded to procedure in such a situation, if it was unwilling to do so, but the reasons why they should think long and hard before ploughing on to make an immediate decision in such a case are obvious and the reasons why the PO should be entitled to give advice to that effect are also obvious. The relevant policies[41]It is only necessary to focus on the key policies and to identify the key differences between the parties in relation to them. This is in the context that, as is common ground, the OR dated 18 January 2024 contained a lengthy section, headed “Policies”, which made extensive reference to all relevant policies and which is not the subject of any ground of judicial review as being materially incomplete or misleading.[42]In particular, the OR identified the Manchester development plan as being the Core Strategy, and which included specific Core Strategy Policies, comprising a number of Strategic Spatial Objectives and Spatial Principles (identified with an SO or SP prefix) and Environment policies (identified with an EN prefix). I need only refer to a small number, about which what the OR said is not the subject of challenge.[43]“SO1. Spatial Principles. The development would be in a highly accessible location and reduce the need to travel by private car and therefore support the sustainable development of the City and help to halt climate change.”[44]“Policy SP1 - Spatial Principles. The development would reuse previously developed land to improve the built environment and local character. The proposal would meet a need for student accommodation.”[45]“Policy EN1 - Design Principles and Strategic Character Areas. The building on site is dilapidated and has a negative impact and there is an opportunity to enhance the area. The proposal would enhance the character of the area and the overall image of Manchester.”[46]“Policy EN 2 - Tall Buildings. The design is acceptable, appropriately located, would contribute to sustainability and place making and deliver regeneration benefits.”[47]The OR also made reference to Policy DM1 - Development Management. This states that all development should have regard to the following specific issues. Of these, the OR identified the following issues as of relevance to this proposal:• Appropriate siting, layout, scale, form, massing, materials and detail;• Design for health;• Adequacy of internal accommodation and amenity space;• Impact on the surrounding areas in terms of the design, scale and appearance of the proposed development;• That development should have regard to the character of the surrounding area;• Effects on amenity, including privacy, light, noise, vibration, air quality and road safety and traffic generation;• Accessibility to buildings, neighbourhoods and sustainable transport modes;• Impact on safety, crime prevention and health; adequacy of internal accommodation, external amenity space, refuse storage and collection, vehicular access and car parking; and• Impact on biodiversity, landscape, archaeological or built heritage, green Infrastructure and flood risk and drainage. The OR stated that “these issues are considered fully, later in this report.”[48]Paragraph 13.7 of the Core Strategy, within which policy DM1 appears, states that: “The Council's approach to Development Management is intended to ensure that new developments contribute to the overall aims of the Core Strategy. The issues which should be considered are those which will ensure that the detailed aspects of new development complement the Council's broad regeneration priorities ... This includes protection of amenity and local character …”.[49]The reference to amenity and local character is something which the Claimant particularly stresses, as will be seen later.[50]Policy H12 – Purpose Built Student Accommodation, which as already stated lies at the heart of this judicial review, was then set out in full in the OR. The introduction stated: “The provision of new purpose built student accommodation will be supported where the development satisfies the criteria below. Priority will be given to schemes which are part of the universities' redevelopment plans or which are being progressed in partnership with the universities, and which clearly meet Manchester City Council's regeneration priorities”.[51]Ten specific criteria were then set out. Of these criteria four and six have been particularly referred to and relied upon by the Claimant. However, it is important to note that these are not said to have any higher priority than the others, which include:(a) criteria one, which is that sites should be in close proximity to university campuses or high frequency public transport routes;(b) criteria three, which includes the statement that “High density developments should be sited in locations where this is compatible with existing developments and initiatives”; and(c) the ninth and tenth criteria, which identify the requirement to show a need for additional student accommodation and to show that the proposals are deliverable.[52]Criteria four stated:
“Proposals that can demonstrate a positive regeneration impact in their own right will be given preference over other schemes. This can be demonstrated for example through impact assessments on district centres and the wider area. Proposals should contribute to providing a mix of uses and support district and local centres, in line with relevant Strategic Regeneration Frameworks, local plans and other masterplans as student accommodation should closely integrate with existing neighbourhoods to contribute in a positive way to their vibrancy without increasing pressure on existing neighbourhood services to the detriment of existing residents”
[53]Criteria six stated: “Consideration should be given to the design and layout of the student accommodation and siting of individual uses within the overall development in relation to adjacent neighbouring uses. The aim is to ensure that there is no unacceptable effect on residential amenity in the surrounding area through increased noise, disturbance or impact on the street scene either from the proposed development itself or when combined with existing accommodation”.[54]Having set out policy H12 in full, the OR then stated: “The proposals are in accordance with this policy and this is discussed in detail below”.[55]It is common ground that policy DM1 refers specifically to amenity considerations in relation to development generally and that policy H12(6) also refers to amenity, albeit (as Mr Katkowski emphasises) specifically in relation to the design and layout and siting of individual uses within the overall development.[56]It is also common ground that policy H12(4) refers specifically to student accommodation “closely integrat[ing] with existing neighbourhoods to contribute in a positive way to their vibrancy”, albeit (as Mr Katkowski emphasises) in the specific context of the preference to be attached to proposals which “can demonstrate a positive regeneration impact in their own right”.[57]Mr Katkowski also emphasised that policy H12 appears in the same section of the Core Strategy as, and immediately following, Policy H11 – Houses in Multiple Occupation (HMO). As Mr Katkowski submitted, that policy and the surrounding explanatory paragraphs made clear that MCC had made a positive decision in 2010 to require planning permission for any change of use from dwellinghouses to HMO in relation to student house shares “in order to prevent residential disamenity and to maintain the sustainability of neighbourhoods” (paragraph 9.43). In paragraph 9.48 it was affirmed that “a sustainable community must provide opportunities for a mix of households”. In paragraph 9.54 it was stated that MCC would encourage PBSA where the need arises on the basis that this “broadens housing choice in a way which reflects evidence of current demand”. Finally, as Mr Katkowski submitted, the inter-relationship between policy H11 and policy H12, and the favourable approach to PBSA in comparison with student house shares, is made explicit in paragraph 9.61 which states: “Assessing proposals for new purpose built accommodation against the criteria above will ensure that schemes are progressed in appropriate locations which meet the Council's regeneration priorities; and the provision of further bedspaces in purpose built student accommodation will assist in encouraging students to choose managed accommodation over HMOs. The impacts of a large number of students living in an area can be more easily mitigated when they are living in purpose built accommodation rather than unmanaged HMOs which have significant impacts on residential amenity for non-student neighbours”.[58]In short, I accept Mr Katkowski’s submission that the Core Strategy has specific sections dealing with the issue of student accommodation, in respect of which the policy is to strongly discourage student house share accommodation and, instead, in order to satisfy demand for student accommodation, to favour appropriate PBSA in appropriate areas which satisfy the policy H12 criteria. Whilst other Core Strategy policies obviously remain applicable to applications for PBSA, it is policy H12 which is of particular relevance in such cases. Furthermore, whilst both policy DM1 and policy H12 make reference to impact on amenity and the surrounding area as being relevant factors, it is obvious that these are only amongst a number of relevant factors when one is considering an application for PSBA.[59]Further, as Mr Katkowski submitted, the paragraph 4 criteria refer expressly to the preference to be given to proposals which can demonstrate a positive regeneration impact in their own right. It is in this context that the reference to close integration and positive contributions and absence of detriment is to be viewed, not as freestanding criteria, where failure to demonstrate such criteria would mean that the PSBA should not be supported.[60]Although in contrast to paragraph 4 the paragraph 6 criterion is freestanding nonetheless, as Mr Katkowski submitted:(i) it is directed to the narrow issue of the design and layout of the student accommodation and siting of the individual uses within it; and(ii) it is clear that the question for consideration is whether or not the effect on residential amenity through the impacts of such matters is “unacceptable”. It is obvious, therefore, that a determination as to whether the effect is acceptable or unacceptable can only be a matter of fact and degree, which is an exercise of planning judgment. The key events and decisions[61]I must now examine in more detail the key events and decisions as referred to in the agreed chronology.[62]The events of 2008 and 2012 are of historical interest only, save to note that:(a) the permission granted on appeal in 2008 related to a taller building than the one the subject of the current permission;(b) no steps were taken to build in accordance with that permission; and(c) nothing of significance happened from that time through to the further application submitted in 2021, apart from the refusal in 2012 of the second application.[63]Moving on to 2022, the reasons given for the minded to refuse decision of 31 May 2022 were stated as being the scale of the application and the parking issues in the area. At this stage the proposal was for a part 9, part 13 storey purpose-built PSBA providing 261 student bed spaces which was, therefore, a much more substantial building than that the subject of this permission. It would appear from the minutes that the reason for the minded to refuse decision rather than outright refusal was that the OR had advised in favour of granting planning permission subject to conditions, so that in accordance with the Planning Protocol the PO was required to consider the position in the light of the PC’s view and report afresh.[64]The reasons given in the further minded to refuse decision of 20 October 2022 related to a revised and reduced proposal, namely a part 7 / part 11 storey PBSA with only 197 spaces. There were five stated reasons for the decision which can be summarised as follow.[65]The first, the scale of the proposal and the dominant visual impact this would have on the area, was a repeat of the first previous reason. The second (the lack of parking in close proximity to the entrance for those with disabilities) and the third (the use of on-street spaces for disabled parking spaces) were refinements of the second previous reason. The fourth and the fifth were direct quotations from policy H12 paragraphs 3 and 6.[66]The minutes record the PO’s advice that because:(a) the height had been reduced to the same height as the scheme for which planning permission had been granted on appeal in 2008; and(b) ten disabled parking spaces had been proposed, “as such a refusal could not be substantiated” on the basis of the previous reasons given in the previous minded to refuse decision. They also record that the PO had stated that “policy H12 in the Core Strategy is key to determining if the application is appropriate” and that this led to a discussion and the inclusion of the fourth and the fifth reasons. The minutes also record a discussion about the use of the minded to refuse procedure and the Director of Planning confirming that “because the Committee is considering an amended application, it could only be Minded to Refuse” decision.[67]I have included these observations, because they show that by October 2022 the PC had already been referred to policy H12 and had identified reasons for concluding, in disagreement with the PO’s advice, that the proposal did not sufficiently meet the policy H12 criteria and that there had also been a discussion about the circumstances in which the minded to refuse procedure should be repeated.[68]By July 2023 the proposal had been further revised to specify a mix of accommodation types and to provide 20% of the bedspaces at a 20% discount of market rent. On this basis the PO recommendation was minded to approve subject to a legal agreement for the 20% provision. It appears from the minutes that this was the first time that one of the members had expressed the view that the site was not a sustainable location for a PSBA. The decision made by the PC, however, was a minded to refuse decision “due to a PBSA of this size being contrary to sustainable neighbourhoods in keeping with the city council’s PBSA Policy”. The Director of Planning stated that “the decision would be taken away to be determined whether the Committee’s reason was suitable”.[69]I have included these observations, because they show that by July 2023 a question had emerged as to whether or not the PC could refuse permission on the basis that the proposal did not sufficiently meet the H12 criteria on the basis that the location was not sustainable for the PSBA as proposed.[70]By November 2023 the proposal had been revised downwards to a part 7 / part 9 storey PSBA with 146 bed spaces and a ground floor community hub. The decision as minuted was again minded to refuse “due to the development proposed having an adverse impact on the balance and sustainability of the neighbourhood, in keeping with city council policy, and also because of the disamenity brought by the application”. This decision was made notwithstanding the Director of Planning reminding the PC that they “had to make their decision based on policy, in terms of which there was no reason to refuse”.[71]It is important to note that the decision recorded that the conclusion that the proposed development would have an adverse effect on the balance and sustainability of the neighbourhood was said to be in keeping with city council policy. The further reason of disamenity was not also specifically identified as such. This is important because it can be seen that the debate about whether balance and sustainability impact was a reason justifying refusal under policy H12 was still ongoing. In contrast, there was no equivalent debate in relation to amenity. This is not surprising, given that – as I have said – amenity was directly addressed in policy DM1 whereas it was included only in a limited respect in relation to policy H12.[72]This analysis is reinforced by the OR produced for the November 2023 meeting, which recorded that “Officers believe that there is no policy based reason for refusal on the grounds that a proposal for PBSA would undermine maintaining a sustainable mixed residential neighbourhood”. In the Executive Summary under the first key issue, principle of use and contribution to regeneration, the OR clearly advised that “the development would meet the tests of Core Strategy Policy H12”.[73]However, it is also plain that the PC were still unwilling to accept this advice, so that at this stage the stalemate continued.[74]It is also apparent that the reason for the PC making another minded to refuse decision, rather than simply refusing, was again because they were considering a different and revised proposal from that the subject of the previous decision. The January 2024 OR[75]It is against this background that one turns to the OR produced for the January 2024 report. As Mr Goodman KC and Mr Thomas submitted, it is substantially in the same terms as the previous OR in the majority of its content. It is the opening which has been updated and is different.[76]The introduction begins by recording that in November 2023 the PC was minded to refuse “on the basis that PBSA of this size would be contrary to maintaining a sustainable mixed residential neighbourhood and would lead to an imbalance of students living in the area”. Mr Goodman submits that this introduction omits, importantly he contends, any reference to the other minuted reason, that of disamenity. Mr Katkowski accepts, as he must, that disamenity is not mentioned in the introduction. His submission is that there was no reason to refer to it specifically, because the key point as at the stage the OR was produced, and which needed to be the subject of specific advice in the OR, was whether or not the balance and sustainability impact reason justified refusal under policy H12. I shall need to address this point once I have completed my review of the January 2024 meeting and the subsequent decision.[77]As the authorities make clear, an OR must be read as a whole. Since the OR produced in this case runs to 72 pages it is impossible, however, even to summarise it without running the risk of cherry-picking. I will nonetheless attempt to do so in a neutral fashion, identifying the most important particular points relied upon by the parties as regards its content.[78]The introduction continued and ended as follows: “The planning policy context for this proposal is set out clearly in the section of the report with the sub heading ‘Policies’. This part of the report addresses all of the policies that are relevant to the determination of the application. As has been set out in previous reports, officers do not consider that there is a policy-based reason to refuse this proposal. If members resolve to refuse the application contrary to this very clear advice, they would have to use the information in the above paragraph which has no planning policy basis”.[79]That is plainly very firm advice. Mr Goodman’s argument is that it is wrong for two reasons. First, it makes no reference to disamenity at all, let alone that “unacceptable effect on residential amenity in the surrounding area” is expressly included in criteria H12(6). Second, it makes no reference to the fact that criteria H12(4) say that a PSBA should “closely integrate with existing neighbourhoods to contribute in a positive way to their vibrancy without increasing pressure on existing neighbourhood services to the detriment of existing residents” which, says Mr Goodman, could properly justify a requirement that a PSBA should contribute to a balanced and sustainable neighbourhood. In that respect, Mr Goodman also identifies two paragraphs of the National Planning Policy Framework (NPPF) then in force, which refer to “the objective of creating mixed and balanced communities” (paragraph 64) and the aim of achieving “healthy, inclusive and safe places which promote social integration, including opportunities for meetings between people who might not otherwise come into contact with each other” (paragraph 96).[80]Importantly, Mr Goodman submits that this cannot be read simply as the PO’s planning judgment advice as to whether or not the proposed PBSA would or would not comply with a particular policy. Instead, Mr Goodman submits that it is the PO’s advice on a question of law, namely whether or not the reasons given in the previous minded to decision could rationally be supported as being in accordance with relevant planning policy, and that the advice given that it could not was both wrong and seriously misleading.[81]Mr Katkowski’s argument is that not only is it apparent that the PO was only setting out their view as a matter of planning judgment, as would have been apparent to any reasonably careful informed PC member, but also that – insofar as relevant - it was plainly right.[82]Before considering this question, which is the crux of ground one of the judicial review, I need to refer as appropriate to the OR and, as necessary and with suitable caution, to the minutes, and – with even more caution – to the transcript.[83]The first section of the OR, headed “history of application”, ended with the paragraph:
“The City is home to around 80,000 students, the majority of whom live in Manchester during the academic year. They are an integral part of the City’s residential community. They generally live in areas close to the Universities or on accessible transport routes and support the creation of sustainable mixed residential communities. There is considerable evidence that students are choosing to live in mainstream accommodation in and around the city centre on the basis that there is an undersupply of PBSA. This proposal could help to free up mainstream accommodation. Officers believe that there is no policy based reason for refusal on the grounds that a proposal for PBSA would undermine maintaining a sustainable mixed residential neighbourhood.”
[84]It is worth observing that here the PO was expressly addressing the issue of sustainability and, in that context, the inter-relationship between policy H11 and policy H12, i.e. the positive contribution to sustainability of this proposal for PSBA if it reduced demand for student house shares. It is also worth observing that the text of this paragraph, in particular the last sentence which refers specifically to the PO’s belief, indicates that what was being conveyed was the PO’s advice about the application of policy rather than advice about:(i) the interpretation of HS12; or(ii) whether or not any one or more of the individual criteria of policy H12 could rationally be said to be not satisfied.[85]The Executive Summary was in the same terms. It is worth setting out the text under the first key issue, principle of use and contribution to regeneration, in full, because again in my view it makes clear that it is an expression of the PO’s planning judgment. “The development is in accordance with national and local planning policies, and the scheme would bring significant economic, social and environmental benefits. This is a previously developed brownfield site located in a highly sustainable location close to Oxford Road, the University Campuses and public transport modes and amenities. The development would meet the tests of Core Strategy Policy H12. The applicant has demonstrated that there is unmet need for the proposed student accommodation, there is University Support, it has demonstrated that the proposal is deliverable, the proposal is sustainable and provides an appropriate standard of accommodation (including supporting the wellbeing of students), meeting carbon objectives and delivering regeneration benefits in its own right.”[86]It also includes a section headed “Impact on local residents” which reads as follows:
“The impact on daylight/sunlight, overlooking and wind conditions are considered to be acceptable. Construction impacts would not be significant and can be managed. Noise outbreak from plant would meet relevant standards and the operational impacts of the accommodation can be managed. A full report is attached below for Members’ consideration.”
[87]There is indeed a very full report in the OR on this very important consideration. What is plain is that, again, it is considering the question of the impact of the proposed development on the amenity of the surrounding neighbourhood as a matter of planning judgment. It is emphatically not advising (paraphrasing Mr Goodman’s case) either that “impact on amenity is not a material consideration, because it is not a relevant factor in accordance with the development plan, policy H12 or policy DM1, or otherwise”, or that the PC could not rationally conclude that the impact on amenity was sufficient to refuse planning permission under relevant policy or other material considerations.[88]The OR identified the current proposal and the responses to it, including the objections, in considerable detail over a number of pages. There is no need to refer to the detail and no complaint is made as to its content.[89]The OR then turns to identify the applicable policies, beginning with the relevant local policies and the development plan as found in the Core Strategy. As I have already said, it refers to and summarises the relevant parts of policy DM1, including express reference to impact on amenity, and it also refers to and sets out policy H12 in full. It cannot be said, therefore, that the PC were not made aware of these policies and their content. Indeed, it would be most surprising if a Manchester City Council planning committee could have been anything other than familiar with these policies. It concludes “for the reasons set out in more detail below, the proposal is considered to accord with relevant policy”. It refers to the NPPF, identifying those specific policies considered to be particularly relevant. It also identified and referred to two MCC reports on PSBA, endorsed in December 2020 and in May 2023 respectively, both of which were identified as material considerations, and with which the application was said to accord. It also emphasised the location of new PSBA as a key factor. This is important because the OR’s view was that the location of the PSBA in question was in accordance with that criterion, being in close proximity to the Oxford Road Corridor area.[90]The issues arising from relevant policy were then considered in order and in detail, and reasons given as to why the proposal was considered to be consistent with policy. In particular, the principle of student accommodation was considered by reference to policy H12 and the stated conclusion was that “the principle of student accommodation is acceptable”, although “consideration of the detailed matters” was required and was set out below. Again, in my view, this shows that the PO was giving their advice on policy application which is a matter of planning judgment, and was not intending to give advice as to planning policy interpretation or whether or not policy DM1 or policy H12 could rationally be relied upon to justify refusal.[91]Other specific matters, such as contribution to public spaces and facilities (where the contribution provided by the proposed community hub was assessed) and effect on the local environment, where amenity was specifically addressed in detail, were considered. This included issues such as noise, overlooking and overshadowing of existing buildings, as well as a recommended condition that a “detailed servicing and deliveries strategy shall be submitted for approval in writing by the City Council, as Local Planning Authority to include details of the management arrangements for moving in and out times, taxi pick up and drop off and food and online deliveries and any other associated management and operational requirements”. This was relevant because of the objections raised in relation to the adverse impact the PSBA was believed to have on the local community as a result of the activities of its student occupants. The responses from objectors were duly considered and addressed in detail.[92]The conclusion is worth setting out in full:
“It is acknowledged this application has generated concern and that on previous occasions, Members have deferred the proposal resolving to be minded to refuse. Amendments to the scheme were made to scale and height to address these concerns. With the scale and massing of the building reduced and being less than the development allowed on appeal, it is not considered there would be undue adverse impact on the local area or existing residents. This conclusion is not solely based on the Inspector’s decision as impacts have been tested as part of this current application. As noted a reason for refusal on the grounds of the scale and the dominant visual impact could not be reasonably sustained. The proposal conforms to the development plan and there are no material considerations which would indicate otherwise. The proposal represents investment near to ‘The Corridor’ and is wholly consistent with planning policies for the site (Policy H12) and would help realise regeneration benefits and meet demand for student accommodation in a sustainable location. Significant weight should be given to this. The design would set high standards of sustainability. The location would take advantage of the sustainable transport network. The site would be largely car free (with the exception of the three disabled accessible spaces) which would minimise emissions. Careful consideration has been given the impact of the development on the local area. Inevitably there would be some impacts but as already set out these would not be unacceptable.”
[93]Again, in my view this is obviously planning judgment advice, rather than advice on policy interpretation or advice as to whether the contrary conclusion could be rationally justified.[94]The recommendation in the OR was “Minded to Approve subject to a legal agreement containing affordable rent obligations for up to 20% of all bed spaces being advertised as being below market rent level in each academic year”.[95]There was then a long list of 33 proposed conditions, some of which were standard but others addressing the particular concerns referred to, including those in relation to impact and amenity. The minutes of the meeting[96]The minutes begin by recording that the PC considered the OR. It repeated the PO’s view that they “did not consider that there was a policy-based reason to refuse this proposal” which, again, in my view indicates that this was advice on policy application rather than policy interpretation. The same is true in my judgment of the further statement by the PO that they “could find no policy-based reason to refuse the application based on the reason the Committee had been previously minded to refuse, on the basis that PBSA of this size would be contrary to maintaining a sustainable mixed residential neighbourhood and would lead to an imbalance of students living in the area”.[97]It is recorded that a member “wanted to propose refusal based on the size of the scheme and policy H12”. The Director of Planning is recorded as stating that if the height of the scheme was to be relied upon that would have to be a minded to refuse decision rather than a refusal decision. In my judgment this advice was plainly justified. If the PC wished to re-introduce a further reason for refusal, which had not been identified in the previous minded to refuse decision and was contrary to the advice given in the OR, then that was something which should normally be the subject of further advice from the PO in accordance with the Planning Protocol.[98]It is then recorded that a member stated that they would second the proposal if it was amended to minded to refuse on the basis of policy H12. It is apparent in my judgment from the minutes, when cross-referenced to the transcript, that what was happening was that certain members wanted to refuse the application by reference to policy H12 on the basis of the reasons given at the previous meeting (i.e. balance and sustainability impact) as well as on the basis of the further reason of the height and scale of the development, however they accepted that this would need to be done by way of a further minded to refuse decision, because the PO would need to consider both reasons and report back at a further meeting.[99]However, another member stated that they believed that this would be “disingenuous” and a decision was needed then and there, but also queried how this would work in terms of the procedure for moving and voting on successive motions. The Director of Planning and a representative of the City Solicitor, both of whom were present, advised that if a motion was proposed and defeated it could not be moved again, so that another motion would be required.[100]On that basis, the motion of minded to refuse on the basis of policy H12 was moved and was rejected by a majority of nine to three, with two abstentions.[101]Another member then moved a motion to approve the application on the basis of the PO’s recommendations, and this was passed, again by a majority of nine to three with two abstentions.[102]It is worth noting that:(a) there was nothing preventing any member of the PC from voting in favour of the minded to refuse motion and then voting against the motion to approve;(b) the approval was on the basis of the proposed conditions, many of which were directly relevant to the balance and sustainability impact of the development as well as its impact on amenity.[103]Although I have been referred to various parts of the transcript, I do not consider that it assists to identify them in any detail. For example, Mr Goodman refers me to the advice transcribed as having been given by the PO where he is recorded as saying that they had “scoured the core strategy” to see if there was a policy based reason to underpin the balance and sustainability impact reason given in the minded to refuse decision and concluded that there was not. He submits that this showed that the advice being given was that there was no such reason and the PC could not rationally have reached a different decision.[104]However, as Mr Katkowski submits, what is apparent is that the PO went on to say – rightly in his submission and as I accept –that it was policies H11 and H12 which, read together, contained the policy in relation to the balance and sustainability impact of PBSA when compared to student house shares in different parts of the city.[105]Whilst I accept that the transcript does convey how strongly the PO presented their opinion, I do not consider that this evidence as to the way in which the opinion was expressed at the meeting should tempt me into treating the overall thrust of the advice being given by the PO any differently from how it was presented in the OR. Ground one –determination[106]In paragraph 39 of the skeleton argument Mr Goodman submitted that: “The Committee had already articulated a draft reason for refusal as recorded in the minutes of the previous meeting. Officers were asked to articulate the reason for refusal. It is not wholly clear why they did not do what was directed. Officers appear to have considered that they needed to identify a policy basis for the reason for refusal. While identifying a policy basis is obviously sensible, it is not a legal requirement. But moreover there is no explanation why officers did not support the proposed reason for refusal that due to the development proposed having an adverse impact on the balance and sustainability of the neighbourhood and also because of the disamenity brought by the application the proposal was considered to be inconsistent with the criteria in H.12(4) and (6) of the Core Strategy and paragraphs 64 and 96 of the NPPF. Nor did officers seek to assist the Committee in articulating any separate policy basis for the concerns about disamenity based on any of the core strategy or NPPF officers bearing on such matters (such as Policy PH12, NPPF para 130(f))”.[107]In response MCC’s counsel submitted that it was wrong to contend that the PO’s obligation was to act in accordance with the PC’s wishes as expressed at the previous meeting. They submitted that the PO was not just entitled, but obliged, to consider the reasons given for refusal in their capacity as professional planning officers serving the MCC, and then to give their advice to the PC regardless of whether or not it was what the PC wanted to hear, and regardless of whether or not it accorded with the view of the PC as expressed in the passing of the minded to refuse motion passed at the last meeting. They submitted that the PO was not obliged to draft reasons for refusal stating that the decision was in accordance with relevant policies if the PO could not, in the exercise of their planning judgment, support such a statement. They submitted that as long as the advice given by the PO was not materially misleading, it is irrelevant that others might reasonably hold a different view as to the planning merits or whether or not the reasons given by the PC were in accordance with relevant policies.[108]In short, and for the reasons already given, I agree with MCC’s submission. There is no legal basis for concluding that the PO had a positive obligation to do anything other than provide the PC with the relevant information they needed to make their decision, including information as to the relevant policies, without material misrepresentation. The PO was also entitled to give their advice as to the planning merits, as long as they did not materially misrepresent the position. They were not obliged to draft reasons for the PC on the basis that the PC might decide to maintain their decision, even though that decision was contrary to the PO’s further advice. Still less were they obliged to draft reasons stating that the refusal was in accordance with relevant policy, even if they did not agree that it was. Nor were they obliged to advise the PC, as a knowledgeable and informed body, that they could refuse permission anyway, and give their reasons for doing so, even if they were contrary to the PO’s views, and even – if they wished – on the stated basis that the application was not in accordance with policy H12 as regards balance and sustainability impact and policies H12 and/or DM1 as regards impact on amenity.[109]As the PO stated in the OR, if the PC decided to refuse permission for the reasons previously recorded in the minded to refuse decision, then that was the information they could use and those were the reasons they could give. If, as intimated in the meeting, the PC had also decided to refuse permission for further or different reasons, such as the height and scale of the proposed development, then the PC could have given those reasons, which could then have been recorded in the minutes. That was a decision for the PC to make and the reasons were those for the PC to identify and state if they were satisfied they should reject the PO’s advice. They could have added that these reasons were in accordance with policy X or material consideration Y if they wished, regardless of the PO’s advice to the contrary. It cannot be argued that the decision was invalidated because the PC was not advised that the reasons for refusal were in accordance with policy X or material consideration Y, when the PO had no obligation to do so unless they believed that this was justified and when in the end that it was for the PC to decide what reasons to give.[110]I now address Mr Goodman’s further submission that the OR was materially misleading because in the introduction it stated “if members resolve to refuse the application contrary to this very clear advice, they would have to use the information in the above paragraph [i.e. the reason for the previous minuted minded to refuse decision] which has no planning policy basis”. The Claimant submits that this was doubly misleading:(i) first, because it was wrong to say that it had no planning policy basis; and(ii) second, because it failed to refer at all to the amenity issue.[111]In my judgment, this submission seeks to isolate and take this part of the introduction out of context. That is because it appears immediately after the statement that the PO “do not consider that there is a policy-based reason to refuse this proposal”. In other words, it was being made clear that this was the PO’s view and their advice, on a matter of policy application not on a matter of policy interpretation. The PO had also stated in the introduction that all relevant policies are addressed in the “policies” section of the OR. This, as already noted, was extremely detailed and, in particular, set out policy H12 in full and also referred to the relevant parts of policy DM1 and then included extensive analysis of whether or not the application was, in the PO’s view, in accordance with relevant policy.[112]It cannot credibly be submitted in my judgment that the PC could have been materially misled by this sentence, read in context, into believing that there was no planning policy which could, either as a matter of policy interpretation or on any rational exercise of planning judgment, justify a refusal. Further, it cannot credibly be submitted in my judgment that this PC, well familiar with the relevant policies and with their function as a planning committee, could have read this sentence in this way and, in consequence, simply not troubled to read the whole OR because there was no point. Instead, having read the section on policies, having read the detailed discussion of the issues, and having read the conclusion and recommendation and the conditions, the PC could have been left in no doubt that the PO’s view was based on their analysis of the planning merits of the application, rather than on planning interpretation. It follows in my judgment that the PO had properly performed its function of ensuring that the PC had access to the relevant policies, and had the benefit of the PO’s analysis of the planning merits, but always on the basis that it was for the PC to make up its own mind.[113]In short, if one reads the OR in full, it is apparent that the PO was not stating that there was no policy which could justify a refusal on the grounds of balance and sustainability impact or on the basis of impact on amenity, only that in the PO’s assessment of the merits the application could not be refused on the basis of relevant policy and, in particular, could not be refused by reference to policy H12 as the most directly relevant policy.[114]As Mr Katkowski submitted, it is apparent that on a proper application of policies H11 and H12, when read together (as they ought to be), then so long as the proposal satisfied the criteria in policy H12 it ought to be regarded as having a balanced and sustainable impact when compared with the unbalanced and unsustainable impact of student house-share accommodation in unsuitable localities. That is what the PO was saying in the OR and, in my judgment, that was not only not materially misleading, and not only a perfectly rational view to convey, but also – insofar as relevant - it was plainly right. Whilst that did not prevent the PC from concluding that as a matter of planning judgment the proposal did not sufficiently satisfy the criteria in H12, or from concluding that the impact on amenity was sufficiently serious to engage DM1, in the end that was a matter for their own exercise of their own planning judgment.[115]There is no reason for thinking that the PC was unaware that it was entitled – if it wished - to disagree with the PO and to refuse the application on the basis of their assessment of its adverse impact on the balance and sustainability of the relevant locality and/or its adverse impact on the amenity of the relevant locality, or that they were misled into believing that they were not entitled to do so.[116]Whilst I am prepared to accept that the words “No planning policy basis” are strongly expressed, I am satisfied that they are not materially misleading, as opposed to simply reflecting the strong view held by the PO as to the planning merits.[117]Nor do I accept that the OR was materially misleading because it did not expressly refer to the fact that reference had also been made in the previous meeting to amenity also being a reason for the minded to refuse decision or to the fact that amenity was a factor which could in principle justify refusal:(a) under the narrow basis identified in policy H12(6) as discussed above; or(b) more widely, under policy DM1.[118]As Mr Katkowski has submitted, the minutes of the previous meeting make clear that what was required was advice from the PO as to whether the balance and sustainability impact issues raised by the PC at the previous meeting would justify refusal under policy H12. That advice was given, as well as very full advice as to policy H12 and policy DM1, including the references in those policies to amenity. There was nothing misleading in this.[119]Further, as Mr Garvey observed, the members present at the January 2024 meeting had also all been present at the previous November 2023 meeting, so that it cannot realistically be argued that they risked being materially misled unless they were expressly reminded that issues of amenity had also been raised at that earlier meeting which, indeed, appeared from the minutes of that meeting. As he also submitted, since the Claimant’s complaint in relation to amenity is that it should have been, but was not, the subject of specific advice in the OR, it is difficult to see how it could be argued that materially misleading advice was given in relation to the amenity issue. If the PC had wanted to rely on amenity as a ground for refusing permission, there was nothing in the OR which materially misled them as to their ability to do so. That is especially so in circumstances where reference was made in the OR to amenity in the context of policy DM1, where there was a detailed consideration of amenity related issues in the OR, and where a number of the conditions recommended by the PO related to amenity issues.[120]I do not accept that anything in the minutes can fairly be relied upon as indicating that the advice given by the PO went materially or relevantly beyond what was stated in the OR. The relevant section of the relevant paragraph in the minutes stated that:
“The Planning Officer could find no policy-based reason to refuse the application based on the reason the Committee had been previously minded to refuse, on the basis that PBSA of this size would be contrary to maintaining a sustainable mixed residential neighbourhood and would lead to an imbalance of students living in the area”
. That in my judgment did not depart in any material way from the content of the OR and, in particular, did not indicate that this was advice on planning interpretation or seek to advise the PC that they could not legally, acting rationally, conclude otherwise.[121]The transcript also says substantially the same thing. Although it was, as I have accepted, expressed forcefully nonetheless, and for the reasons stated in the authorities to which I have referred, it would be wrong to place too much importance on the particular words used, given the circumstances in which oral advice has to be given at such meetings.[122]In summary, in my judgment neither the OR, nor what was recorded as said in the minutes or in the transcript, can be read as a statement that there was no policy basis as a matter of policy interpretation, nor any policy basis which could rationally be used, to support this reason for refusal, as opposed to a statement that in the PO’s planning judgment there was no sustainable policy basis which could be used to support that reason. Ground two – determination[123]In my judgment there is nothing in this ground. What is clear from the minutes is that the advice was given as a response to one of the members seeking to rely on the height and mass of the proposed building as an additional reason for refusal under policy H12. It cannot credibly be submitted that it was materially misleading for the PO to express the view that if that additional reason was to be relied upon as a reason for refusing then it should, consistently with the Planning Protocol, be the subject of a minded to refuse decision, so that it could the subject of specific PO consideration and advice to enable the PC to decide at the next meeting whether or not they wished to rely on that as an additional reason for refusing permission.[124]Mr Goodman emphasises the fact that the Planning Protocol says “ordinarily”, whereas the minutes of the meeting refer to the advice given orally as being that “if members wanted to change the reason, then they would have to be minded to refuse again rather than being able to propose refusal”. In my judgment however that fails to apply the benevolent approach which should be applied when considering criticisms of oral advice given by a PO in a planning committee meeting. If a member had genuinely believed that the PO was advising that there was no other option and wanted to pursue the proposal of a motion for outright refusal, then no doubt the PO would have referred to the Planning Protocol and would have explained that although it was not mandatory there were very good reasons for it, as indeed there were.[125]It is also worth noting, as both MCC and Curlew have done, that later in the meeting the City Solicitor representative stated that because a different reason had been put forward from the one on which members had been minded to refuse the last time “it would therefore, in terms of the normal course of our proceedings, and what’s in our protocol, that would therefore have to be a minded to refuse on H12 again, so the officers have the chance to address that and see if they can sustain that reason for refusal on policy terms” (emphasis added). Insofar, therefore, there was a misleading explanation in the earlier statement, it was corrected before the PC proceeded to a vote.[126]In this respect I should note that, as stated in the agreed chronology above, two days before the meeting the members had all been emailed a letter by the Claimant’s current solicitors, writing on behalf of Block the Block, setting out their position that the relevant section of the Planning Protocol did not “make any provision for repeat applications to be brought back with a recommendation contrary to the expressed will of the members: rather, it provides that a senior officer should explain the implications of a contrary decision before the decision is taken”. They referred to the fact that the “Public Document Pack” provided to all persons attending the meeting included a statement that “If the Committee decides it is minded to refuse an application, they must request the Head of Planning to consider its reasons for refusal and report back to the next meeting as to whether there were relevant planning considerations that could reasonably sustain a decision to be minded to refuse”. They stated that this incorrectly stated the procedure and urged the members to refuse the application on the basis that there had been no material changes since the last meeting.[127]It follows that the members of the PC would have been well aware before the meeting that, at least on one view, there was no obligation to adopt the minded to refuse procedure. Indeed, the minutes already referred to, as well as the transcript, indicates that there was some discussion about whether or not the motion to be put should be to refuse the application or to be minded to refuse the application. They also show that it was only after some discussion that it was agreed, by the member originally proposing the outright refusal motion, and the member stating that they would be willing to second a minded to refuse motion, to propose and second the latter motion instead. There is no indication that the PC was positively advised that they could not under any circumstances move a motion to refuse. Thus, it cannot credibly be argued that members were misled that they could not, constitutionally, have proposed and voted in favour of a simple refusal of the application. Instead, they accepted the advice that, because an additional reason for refusal was being put forward, they should proceed on the basis of a minded to refuse proposal. That was advice which the PO was perfectly properly entitled to give.[128]Although Mr Goodman argued that the Public Document Pack already referred to was itself materially misleading, in suggesting that the minded to procedure was mandatory, the true position, as Mr Katkowski submitted, is that this only applies where the PC has already decided that it is minded to refuse. In any event, there is no indication that this was even referred to, let alone relied upon, and I also refer to what was said by the City Solicitor representative insofar as the contrary is the case. Issue 3 – whether relief should have been refused even had I found for the Claimant[129]This point is of academic interest only given the conclusions I have already reached, but I should address it in case there is any appeal. The issue is whether it is highly likely that the outcome would not have been substantially different if the errors identified by the Claimant had not occurred.[130]I am prepared to accept that the Claimant would have had a good argument on this point in relation to ground one. It is true that in the end there was a significant majority against the minded to motion and the same significant majority in favour of the motion to grant permission. However, it must also be borne in mind that:(a) there was clearly a strong view, expressed by at least one member judged from the minutes, that the time had come to make a final decision one way or another;(b) since the PC had previously voted to be minded to refuse at the previous meetings, it cannot be assumed that there was always a majority of members who would always have voted in favour of the application at this meeting regardless of what the OR said or what happened at the meeting; and(c) if the Claimant is right that the PC should not have been advised that there was no policy basis to refuse planning permission, and instead should have been advised that they could vote to refuse planning permission on the basis that such a decision could be said to be in accordance with policy H12 and/or policy DM1, then it cannot safely be concluded in my view that it is “highly likely” that the outcome would not have been substantially different if the errors identified above had not occurred[131]I am not, however, prepared to accept that the Claimant would have had the same good argument in relation to ground two as a freestanding ground had he failed on ground one. That is because on this hypothesis:(a) the PC had not been materially misled by the OR into believing that there were no policy grounds for refusing the application; but(b) the PC ought to have been, but were not, advised that if they were still in favour of refusing permission, then although ordinarily they should make a minded to refuse decision, they were not obliged to do so.[132]However, if I am right in my view that this advice should properly have been given on the basis that a member had introduced a new additional reason for refusing permission, then it is difficult to see how the PC could not, even if reluctantly on the part of some members, have followed it, as they had done in the past. The contrary would be to suggest that the PC would have decided to refuse permission in reliance on an additional ground which they were being advised, correctly, was not the subject of advice from the PO and which could not, therefore, be the subject of advice from the PO that refusal on this ground was in accordance with policy. Knowing, as they would, that this would have the potential to lead to a successful judicial review of the decision on that narrow ground, in my judgment it is highly likely that they would have agreed to defer a decision until that point had also been addressed.