Breach Of Constitution by Planning Committee Not Fatal to Grant of Planning Permission

Introduction

The Court of Appeal in England and Wales recently published its judgment in R (on the application of Sarah Moakes) v Canterbury City Council and others [2025] EWCA Civ 927. This was a challenge to a planning permission granted by Canterbury City Council (“the Council”) for a major development comprising an expansion of Canterbury Business Park to create an 11,900 square metre winery and outline proposals for 8,000 square metres of warehousing on a site close to the business park. The proposed development falls within the Kent Downs Area of Outstanding Natural Beauty, the North Kent Downs Area of High Landscape Value and the Highland Court Conservation Area.

The challenge was brought by Ms Moakes, a local resident and member of the Campaign to Protect Rural England Kent Branch (“CPRE Kent”), both Ms Moakes and CPRE Kent had objected to the proposals as had Kent Downs AONB Unit and Natural England. The challenge was previously unsuccessful in the High Court and was subsequently appealed to the Court of Appeal on several grounds, the main ground for consideration by this article relates to procedural unfairness.

Facts

The development proposals had been brought before the Council’s planning committee for determination – the main issue in this case concerned the speaking rights afforded by the Council’s constitution. The constitution permitted “three persons” to speak in favour of a proposal and “three persons” to speak against (paragraph 3.3.1 of the Appendix to the Council’s constitution). In addition, the constitution permitted one representative of an advisory/amenity group or residents association to speak for a proposal and one representative to speak against it (paragraph 3.3.3). At the committee meeting at which these proposals were considered, the planning manager of the AONB Unit spoke on behalf of that unit and Natural England and three people spoke in support of the proposals. Ms Moakes did not register to speak on the basis that CPRE Kent were seeking a speaking slot and she expected the substance of their concerns to be shared at the meeting. In fact, the Director of CPRE Kent had sought to register to speak but was informed that only one group could register to speak (the AONB unit had already registered) but she could register as an individual speaker. The Director decided against registering to speak as an individual as she felt representation on behalf of CPRE Kent would carry more weight. Similarly, a representative of Natural England was also told that she could only register to speak on an individual basis.

The High Court held that there was no basis to confine those speaking under paragraph 3.3.1 to those speaking in a personal capacity as opposed to those acting on behalf of organisations and the Director of CPRE Kent had been misinformed by the Council officials. The Judge concluded that whilst there had been a breach of the Council’s constitution, the breach was not enough to justify the quashing of the planning permission as Ms Moakes had not established that she had suffered material prejudice as a result.

Grounds Of Challenge

Ms Moakes challenged the decision of the High Court on the basis that the Judge was incorrect in finding that no material prejudice had been suffered by her as a result of the Council’s breach of its Constitution and the Judge had been incorrect in finding that no prejudice had been caused by disallowing Natural England to address the planning committee.

Decision

Andrews LJ giving the leading judgment, agreed with the decision given by the High Court that whilst the Council had breached its Constitution, no material prejudice arose. The key principles outlined in the judgment for this decision were as follows:

1. The breach of a procedural rule is a form of procedural impropriety and will not necessarily mean that the resulting decision is unlawful – material prejudice must be established R (Bradbury) v Brecon Beacons National Park Authority [2025] EWCA Civ 489.
2. The question as to whether someone has suffered material prejudice as a result of not being allowed to speak is fact specific and should be decided on a case by case basis.
3. If a planning authority provides for a process that allows people to speak at a meeting, it must ensure that process is fair (R (Citizens UK) v Secretary of State for the Home Department [2018] EWCA Civ 1812.
4. The question of whether procedural unfairness arose depended on whether Ms Moakes was materially prejudiced by the fact that CPRE Kent did not speak at the planning committee meeting or that Natural England did not take a separate speaking slot to that of the AONB unit.
5. Neither Natural England nor CPRE Kent claimed to have been prejudiced by not speaking against the development at the planning committee meeting.
6. The High Court Judge (who the Court of the Appeal noted had a planning background) was in the “best position to evaluate whether there was any material prejudice, and her view that there was none is to be afforded considerable weight”.
7. Ms Moakes chose not to speak on the assumption that CPRE Kent would speak – there was no evidence that Ms Moakes had taken any action to find out if indeed CPRE Kent had registered – the Court noted, “Taken at its highest, her evidence is that she made an assumption”.
8. There was no evidence that Ms Moakes was disadvantaged due to the fact CPRE Kent did not speak at the meeting – the Court noted that the substance of Ms Moakes’ objections were not materially different than those articulated by the representative of the AONB Unit (who did speak). There was no evidence that she had failed to say something that Natural England or CPRE Kent would have wished to say.
9. Ms Moakes had made a written representation which took issue with the case officer’s report – this was of “some significance”.
10. There was no evidence that anything new had arisen which CPRE Kent or Natural England would have wanted to draw to the committee’s attention and were not able to do so because they were unable to speak.
11. Ms Moakes had no personal stake in the decision nor did it have a direct impact on her property.

The Court of Appeal therefore concluded that whilst the Council had breached its Constitution with regard to speaking rights, no material prejudice arose and therefore this ground failed. The other two grounds (relating to the failure to give reasons) were also unsuccessful and therefore the planning permission was upheld.

Implications

This judgment is a helpful reminder that even though procedural breaches can occur when it comes to decision making by planning authorities, that is not always the end of the matter and any claimant must show that material prejudice has arisen as a result of the breach. Therefore, should a claimant wish to challenge a planning permission on the basis of procedural unfairness, concrete evidence must be provided to demonstrate they have been prejudiced.

If you would like any further information or advice on these issues, please contact Faye Phillips or another member of our Planning & Environmental team.

*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice that is tailored to your circumstances.