Planning: Implications of a Failure to Publish Amended Plans

Introduction

The High Court in England and Wales has published its judgment in R (on the application of Glenbrook Industrial Ltd) v Wigan Metropolitan Borough Council [2026] EWHC 1363 (Admin).

The case considered the scope of procedural fairness in the context of a planning application and, in particular, whether a failure to publish certain plans during the application process deprived an affected landowner of a fair opportunity to make representations. It shows that not every procedural defect in a planning process will render a permission unlawful, particularly where the affected party understood the issue and engaged with it.

Facts

The Council granted outline planning permission to Caddick Developments Limited (“Developer”) for an industrial and warehouse development in February 2025 (the “Challenged Permission”). The development lands (the “Development Lands”) adjoined land (the “Adjoining Lands”) owned by the party which brought the judicial review, Glenbrook Industrial Limited (“Glenbrook”).

Glenbrook had previously been granted outline planning permission for industrial, storage and distribution development on the Adjoining Lands in May 2023 (the “Glenbrook Permission”). During the determination of that earlier outline permission, the potential for an estate road connection through the two sites was contemplated and a condition was attached to the Glenbrook Permission requiring a connectivity and implementation plan.

During the application process for the Challenged Permission, the original site access plans submitted by the Developer showed an internal road stopping short of the boundary of the Adjoining Lands. Glenbrook, however, preferred a crossing further to the south-west, aligned with its own development proposals, and made representations to the Council objecting to the proposed crossing point. The Challenged Permission, however, fixed the crossing point at the north-east boundary of the Adjoining Lands.

Following the grant of the Challenged Permission, revised access plans were published on the Council’s website showing the road extending to the boundary between the two sites at the north-east point, rather than stopping short of it. These plans had not been made publicly available prior to the grant of the Challenged Permission.

Glenbrook contended that the failure to publish the substitute plans during the application process deprived it of a fair opportunity to make representations, thereby rendering the decision-making process procedurally unfair and unlawful. Glenbrook consequently instigated judicial review proceedings challenging the Council’s decision to grant the Challenged Permission.

Grounds of Challenge

Glenbrook advanced three grounds of challenge:

• Ground 1 – Glenbrook did not have a fair opportunity to make representations in respect of the substitute plans.
• Ground 2 – The public was similarly deprived of that opportunity.
• Ground 3 – There was a breach of legitimate expectation (arising from the Council’s Statement of Community Involvement) that there would be an opportunity to make representations.

At its core, the challenge was one of procedural unfairness. The case ultimately turned on whether the failure to publish the substitute plans rendered the decision-making process unfair. Although Glenbrook advanced three grounds, the Judge held that Grounds 2 and 3 added nothing material beyond Ground 1 and the case was therefore resolved by reference to the fairness analysis under Ground 1.

Decision

The Court dismissed the challenge.

While accepting that the failure to publish the substitute plans was an “irregularity”, likely due to oversight, the Court held that it did not give rise to any material unfairness. The decisive factors were:

• Clarity from other application documents – The parameters plan, read together with the supporting material, which was publicly available throughout the application process, indicated that any estate road connection would cross the boundary at the north-east point of the Development Lands.
• Glenbrook’s knowledge – Glenbrook’s own evidence demonstrated that it was aware that the location of the crossing point was a live issue during the determination of the application and that the proposal made no provision for its preferred alignment. Through correspondence and discussions, Glenbrook had engaged with the Council on the location of vehicular access between the two sites, the relevance and effect of the condition attached to its own earlier planning permission and had set out objections to the Developer’s proposed route, while advancing its preferred route.
• Opportunity to make representations – Glenbrook engaged with the issue during the application process, including by corresponding with the Council and submitting representations opposing the proposed alignment. The representations addressed the reasons why Glenbrook opposed the possibility that part of the estate road should run through its land.

Applying the established test of fairness – whether Glenbrook had been deprived of an opportunity to make representations – the Court concluded that no such deprivation arose. Glenbrook appreciated the issue and had the opportunity to address it.

Implications

The judgment reinforces several practical points:

• Materiality of procedural errors: Not all failures in the publication or consultation process will vitiate a permission; the key question remains whether any irregularity resulted in material unfairness.
• Substance over form: The courts will look beyond individual documents, such as specific plans, to the application materials as a whole when assessing what a reasonable person would have understood.
• Parameters plans can carry weight: In outline applications, parameters plans may be significant in understanding the scope and implications of a proposal.

Overall, the case illustrates the high threshold for establishing procedural unfairness in judicial review, particularly where the party bringing the challenge was aware of and actively participated in the decision-making process.

*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.