Sarah Moakes, R (on the application of) v Canterbury City Council

This is an appeal by Ms Sarah Moakes against the decision of HH Judge Alice Robinson, sitting as a deputy High Court Judge, (“the Judge”) dismissing her claim for judicial review of a decision taken by Canterbury City Council (“the Council”) on 8 September 2023 to grant planning permission for a major development in the Kent Downs Area of Outstanding Natural Beauty (“AONB”), in accordance with the resolution of its planning committee dated 25 July 2023. Although the expression “National Landscape” is now used to describe such areas, the parties have referred to “AONB” throughout these proceedings, and for ease of reference I shall do likewise.

The second respondent, Mr Walters, is the managing director of three associated companies known as the HICO Group. He was the applicant for planning permission on behalf of that Group, and an interested party in the judicial review proceedings.

The impugned decision was a decision to grant hybrid planning permission comprising (i) full permission for the expansion of Canterbury Business Park to create an 11,900 square metre winery with associated parking and landscaping and (ii) outline proposals with all matters reserved except for access for up to 8,000 square metres of warehousing, on agricultural land south west of Canterbury Business Park (“the Site”). The Site is not only within the AONB, but within the North Kent Downs Area of High Landscape Value and the Highland Court Conservation Area.

It is intended that the winery and associated warehousing development be occupied by Chapel Down Group, the UK’s largest leading wine producer, and by Defined Wine, a specialist in the production of high-quality wines which helps winemakers, including Chapel Down, to produce wine. Defined Wine already operates from the Canterbury Business Park. It requires expansion to meet its current and future needs. The proposed warehouse would be located next to Defined Wine’s existing warehouse and adjacent to the new Chapel Down winery, to the mutual benefit of both businesses.

The application for planning permission was accompanied by a Landscape and Visual Impact Assessment (“LVIA”), a planning statement and an assessment of alternative sites.

Following various rounds of consultation, in around March 2023, in response to objections articulated by local residents, interest groups and statutory consultees, the scale of the proposed development was significantly reduced. The amended application was then subject to further consultation. It was initially approved in May 2023, but that decision was quashed by consent because the Council accepted that its planning officer’s report at that time had failed adequately to address the weight to be attributed to harm to a heritage asset (that matter is no longer in issue). The amended application was remitted to the Council for reconsideration.

The decision under challenge was taken following a positive recommendation in the updated planning officer’s report (“OR”) which was supplemented by an Addendum Report. Neither of those documents bears a date, but the Addendum Report indicates that the OR was published on 17 July 2023. The Addendum Report draws attention to further representations received since the OR’s publication, both supporting and opposing the grant of permission.

Ms Moakes is a local resident and a member of the Campaign to Protect Rural England – Kent Branch (“CPRE Kent”). Both she and CPRE Kent were among those who submitted written objections to the proposed development. Other objectors included the Kent Downs AONB Unit (an organisation that works in partnership with the Council and responds to consultations by the Council on applications affecting the AONB) and Natural England (“NE”), which was a statutory consultee. None of the objectors commissioned their own LVIA.

On the morning of the meeting of the planning committee, CPRE Kent sent an email to the planning officer and committee members drawing their attention to an appeal decision which had been issued the previous day on an application for planning permission for a similar type of development within the Kent Downs AONB, on a site near Medway, Kent (“the Medway appeal”). A copy of that decision was attached, and the covering email noted various paragraphs in it, to which CPRE Kent particularly wished to draw attention.

Paragraph 3.3.1 of Appendix 1 to the Council’s constitution permitted “three persons” to speak in favour and “three persons” to speak against the proposal, provided they registered by 12.30pm on the day before the meeting. In addition, paragraph 3.3.3 made provision for one representative of an advisory/amenity group or residents association whose terms of reference had a direct interest in the proposal to speak for the proposal, and one such representative to speak against it. Paragraph 3.3.4 afforded the applicant or their agent, but not both, the opportunity to speak last. Each speaker was limited to three minutes.

In the event, the Planning Manager for the AONB Unit, Katie Miller, spoke on behalf of the AONB Unit and also on behalf of NE at the meeting of the planning committee on 25 July 2023, strongly opposing the proposal. Three people (the CEO of Chapel Down, the founder of Defined Wine, and a local wine grower) spoke in favour of the proposal, and the applicant’s agent spoke last. Ms Moakes did not register to speak at the meeting. In her witness statement she explained that decision as follows:

“I was aware that CPRE Kent (along with other objecting groups) intended to seek a speaking slot to address the Council’s planning committee at the 25 July 2023 meeting. As a personal objector, I did not consider it necessary to speak personally when I expected the substance of CPRE’s concerns, which I shared, to be presented at the meeting.” (Emphasis added).

Dr Hilary Newport, the Director of CPRE Kent, rang the Council on 20 July 2023 and asked to register as a speaker in opposition to the application, but she was informed that only one group could register to speak against the application and that slot had already been allocated to the AONB Unit. Dr Newport was told that CPRE Kent could make its views known through the AONB Unit speaker or a Ward Councillor, and that she could register “as an individual speaker.” Dr Newport was telephoned by a Council official on the day before the meeting and informed that an individual speaker slot was available, but she decided not to take it. Her evidence was that:

“My decision at the time was, that as a member of the public with no particular personal connection to the site, such representation would carry far less weight than a representation made on behalf of CPRE Kent”.

In fact, as the Judge found at [54], there was no basis to confine those registering to speak under paragraph 3.3.1 of Appendix 1 to individuals speaking in a personal capacity, as opposed to those representing organisations. Paragraph 3.3.3 was designed to ensure that advisory/amenity groups or residents’ associations were able to make representations even if all three speaking slots under paragraph 3.3.1 had already been taken by others (such as concerned local residents). Therefore, Dr Newport could have registered under paragraph 3.3.1 and spoken on behalf of the organisation she represented. Ms Hazel Twizell, a representative of NE who also wished to speak against the proposal, and who was similarly misinformed, could have done likewise. The Judge found that both were misled by the muddled approach taken by Council officials, who put a gloss on paragraph 3.3.1 and gave them the misleading impression that they could only speak in a personal capacity if they registered under paragraph 3.3.1.

Ms Moakes sought judicial review of the Council’s decision to grant permission on the following grounds:

In a carefully reasoned judgment, the Judge dismissed the claim on all four grounds. On Ground 4, she found that the OR did not mislead the committee in any of the respects alleged, and that conclusion is not challenged on appeal.

As to Ground 1, the Judge found that there was a breach of the Council’s constitution, which had the direct effect of putting off two national organisations who wished to speak at the meeting and who could have spoken consistently with the constitution [60]. However, that breach of the constitution was not enough in itself to justify quashing the decision. A breach of procedure is not enough to establish that there has been procedural unfairness; the claimant must establish that she suffered material prejudice as a result. On the evidence, no such prejudice had been established.

On Ground 2, the Judge found that the OR fairly and adequately summarised the objections to the development and gave adequate reasons for reaching contrary conclusions from those of the statutory consultees. On Ground 3, she concluded that the two developments were materially different, and that in each case the decision makers were making evaluative judgments on different evidence as to the level of need, on what alternatives might exist and on the level of harm to the environment. It was therefore unnecessary for the Council to give reasons for distinguishing the decision in the Medway appeal.

Ms Moakes appeals on the basis that the Judge was wrong to dismiss the claim on Grounds 1, 2 and 3. I shall consider each of these in turn.

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

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

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

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

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

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

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

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

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

The surviving limbs of Ground 1 were:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ms Moakes challenges the Judge’s finding that the decision was adequately reasoned. She contends that the claim for judicial review should have been allowed on the basis that the Council had failed to give express reasons for rejecting the views of NE and the Kent Downs AONB Unit in relation to the key issue of the level of harm which the proposed development would do to the AONB.

The law on the duty to give reasons is well known, and the Judge set out the guiding principles at [23] and [24]. The standard of reasoning is that set out in South Bucks District Council and another v Porter (No.2) [2004] 1 WLR 1953 at [36]. Reasons need only be given for conclusions on the principal issues in controversy. There is no obligation to give reasons for reasons.

Whilst the views of statutory consultees must be afforded great weight in the decision-making process, there is no heightened standard of reasoning just because a departure from the views expressed by a statutory consultee requires what have been described as “cogent and compelling” reasons. That phrase is a form of shorthand for the test in Porter (in which it was said that the reasons for a decision must be intelligible and adequate) and adds nothing to it. That was made clear by Holgate J in his illuminating judgment in R(Together against Sizewell C Ltd) v Secretary of State for Energy, Security and Net Zero [2023] EWHC 1526 (Admin); [2023] Env LR 29 at [106] to [114], a passage which I would wholeheartedly endorse.

Unfortunately, that has not stopped attempts to put a gloss on the test by reference to judicial observations taken out of context, which has happened again in the present case.Mr Fullbrook seized upon an observation made by Sir Duncan Ouseley in Watton v Cornwall Council [2023] EWHC 2436 at [30] that:

“a lawful and properly reasoned conclusion on the principal issues in controversy is likely to require at least some, albeit brief, consideration of the principal points raised by the objector on those issues, and reasons why they were rejected.”

Mr Fullbrook submitted that this meant that express reasons for disagreeing with the views of a statutory consultee must always be set out in the OR. However, Sir Duncan was not seeking to lay down any general principle to that effect. Had he done so, I would respectfully have disagreed. However, those remarks were not part of the decision in Watton. They were made in the context of a complaint that the decision maker had accepted the contrary views to those of a statutory consultee without explaining why they preferred those views.

It is important to note that immediately after making the observation relied on by Mr Fullbrook, Sir Duncan went on to qualify it at [31] by saying:

“of course, the nature of an objector’s important point and the way in which it was dealt with may be apparent from the nature of the debate and conclusions reached. The depth or reasoning may also depend on the nature of the opposing case put forward. Short or general objector comments are very different from opposing expert reports, equivalent in expertise, reasoning and detail to those which are preferred.” [Emphasis supplied].

It follows that the reasons for disagreement with the statutory consultee on the key points in issue may emerge clearly from reading the decision as a whole, even if they are not separately identified. The question whether it is sufficiently clear from the OR why the planning officer takes a view contrary to the views expressed by a statutory consultee is acutely fact sensitive. Some cases may require the principal issues in controversy to be addressed in greater detail than others.

In this case, as the Judge correctly identified at [101], the principal matter in controversy was the harmful impact on the AONB, although the business need for the development was also questioned by the objectors, since that was the justification for the harm which was being relied on by Mr Walters and the HICO Group. After the changes to the scale of the proposed development, NE and the AONB Unit modified their views about the degree of harmful impact, but they continued to oppose the development on the basis that it would result in significant long-term adverse impacts, whereas the second respondent said they would be moderate to slight. That difference in planning judgment arose principally from differing views on two matters, namely, the existing visual impact of the Business Park on the landscape character of the Site and surrounding area (which the objectors disregarded) and the containment of the Site by landscaping and planting, some of which was already in place.

Mr Fullbrook stressed that there is a distinction between impact on landscape character and visual impact. One of the points made forcefully by NE and the AONB Unit was that no amount of landscaping and planting could mitigate the impact of converting a “tranquil” rural open field into an industrial site. However, as Mr Walters and the HICO Group pointed out, that ignores the fact that there is already an industrial site next door to the rural open field, which would already have an adverse impact on its landscape character. As their agent said in a letter dated 25 January 2023 in response to the AONB Unit’s initial objections:

“Throughout the letter there follow numerous further references to the undeveloped, open, rural and tranquil context of the site. These numerous references fail to mention that the application site is directly adjacent to an existing industrial estate which, in itself, is the result of (several instances of) major development in the AONB. Clearly therefore, the Unit’s starting point for analysis of a development proposal of a similar nature alongside the existing industrial estate is fundamentally flawed.

It is acknowledged in the LVIA Chapter of ES that the site itself is open and undeveloped (i.e. there is no built development on it) – however it cannot be ignored that the application site is located alongside existing industrial development. Equally, it cannot be ignored that [it] must follow that the site’s character and appearance must be influenced by the adjoining land uses.”

It is obvious from reading the OR that the planning officer accepted that argument. She was entitled to do so.

As I have already mentioned, neither NE nor the AONB Unit chose to commission their own LVIA but instead criticised the LVIA relied upon by the applicant. However, their criticism was not of the methodology but of the judgments formed, and the alleged failure by the authors of the report to address considerations which were said to be relevant. For example, it was said that the LVIA failed to address points made by the objectors about tranquillity and dark skies – both of which are specific facets of the harm to the AONB. The alleged deficiencies in the LVIA were among the matters on which Ms Miller addressed the planning committee at the meeting. Again, the points she made came back to the same two critical factors, namely, the impact on landscape character of the presence of the existing industrial site next door, and the degree to which steps could be taken to mitigate that impact.

It is quite clear from paragraphs 27 to 29 of the OR that the planning officer was well aware of the difference between harmful impact to the character of the landscape and harmful visual impact. I agree with the Judge that the officer had that distinction well in mind. As Mr Giles Atkinson submitted on behalf of the Council, the officer clearly explained in paragraphs 28 and 29 why she herself reached a planning judgment which was in conflict with the forcefully expressed views of the objectors. The officer explained why she came to the conclusion that the harm to the landscape character and scenic beauty would be at a low level. It is clear to any reader that she accepted the applicant’s case that the existing Business Park (and its existing impact) was a relevant consideration when assessing the impact the development would have on landscape character.

I agree with the Judge’s assessment at [101] that the objectors from NE and the AONB Unit would have no difficulty in understanding why the OR reached the conclusions that it did on the level of harmful impact on the AONB, and thus why the planning officer’s views on the principal issues in controversy differed from theirs. The planning officer did not need to descend into further detail, let alone address specific facets of the harmful impact such as increased noise and artificial lighting. Far from being wrong in her conclusion that the decision was adequately reasoned, the judge was plainly right. This ground of appeal also fails.

Finally, it is contended that the Judge was wrong to find that the Council was not obliged to give reasons for departing from the decision in the Medway appeal. There is no complaint about the Judge’s identification of the relevant legal principles at [28]. She took account of the judgment in R(Kinnersley) v Maidstone BC [2023] EWCA Civ 172, upon which Ms Moakes relied. The key question, which she determined adversely to Ms Moakes, was whether the Medway case was on all fours with the present case and not distinguishable in a relevant respect.

Mr Fullbrook alleged that the Judge misinterpreted a phrase in paragraph 142 of the Medway appeal decision (“expansion of the wine industry is not a national priority”) when she treated it as merely being a rejection of the specific economic case being advanced by the appellant in the Medway appeal. He contended that it was a reference to the wine industry in general, and that this led the Judge into erroneously rejecting Ms Moakes’ case that there was a material inconsistency between the Medway appeal decision and the OR in the present case, in which the planning officer had concluded that the wine industry was “nationally important.”

Leaving aside the fact that something can be of national importance without necessarily being a national priority, the short answer to this ground of appeal is that again it involves plucking a phrase out of its context and wrongly treating it as laying down a point of principle of wider application. When one reads the Medway appeal decision as a whole, which is the correct approach, it is clear that the Judge was right for the reasons that she gave. She pointed out the differences between the two decisions at [117] to [123] of her judgment, and there is no discernible error of law in her reasoning.

In each case the ultimate question was whether exceptional circumstances justifying a major development in the AONB had been demonstrated under paragraph 177 of the NPPF. That in turn depended on whether the level of harm to the AONB caused by the proposed development (which had to be assessed by reference to the particular location and design and other relevant factors) was outweighed by a demonstrable economic need (which depended on an evaluation of the evidence of that need and the formation of a planning judgment). But that does not mean that the Medway decision was a “like” case that called for a “like” decision or for reasons explaining the departure from it.

In the Medway case the level of harm to the landscape character was found to be significant. It was also found that the proposed development would significantly detract from the site’s contribution to the scenic beauty of the AONB, whereas by contrast, the level of harm to the AONB in the present case was found to be low in both respects.

There was also a major difference in terms of the evidence of economic need in each case. As the Planning Inspector pointed out at paragraphs 113 and 114 of the Medway appeal decision, the “high level” figures upon which the appellant’s economic case depended did not allow for their critical assessment. He found that the figures did not identify national considerations in support of the proposed scheme, that the assumptions which underpinned them were not sufficiently robust, and that they did not fully reference the economic case for alternative options. This meant that (on the evidence in that case) the appellant’s case on need could not be made out. In the light of those adverse findings the Inspector concluded at [142] that he was not satisfied that a need for the scheme had been established. In context, the Inspector’s observation that expansion of the wine industry was not a national priority was not a statement of general principle, intended to be of wider application, but a reference to the appellant’s failure to identify any national considerations in support of its proposal.

By contrast, in the present case the application was accompanied by an Economic Benefits Assessment which did not suffer from any of those defects. There was also an alternative site assessment which robustly demonstrated that there was no scope for meeting the identified need outside the AONB. The Council itself had not identified any alternative sites, and it was promoting expansion of the Canterbury Business Park for viticulture in the draft local plan. The OR accepted that the economic benefits associated with the development would be significant, and that the scheme had the potential to provide the basis for further development of the viticulture industry in the district. It stated at [70] that “the development would significantly expand the nationally important viticulture industry in Canterbury, supporting the growth of two Kent businesses including Chapel Down, England’s leading and largest winemaker.” As Ms Isabella Tafur, on behalf of Mr Walters, put it in her skeleton argument, given that Chapel Down would occupy three quarters of the development and is currently responsible for over 30% of UK wine production, the Judge was right to find that the OR was entitled to refer to the proposed development in those terms.

For those reasons, I would dismiss this appeal on all three Grounds.

I agree.

I also agree.