The King (on the application of Sarah Moakes) v Canterbury City Council

Hearing date: 8 July 2025

Approved Judgment

INTRODUCTION

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.

THE JUDGMENT

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

(1) The Council failed to follow its constitution and/or acted in a manner that was procedurally unfair;

(2) the Council failed to give “great weight” to the views of expert consultees and/or failed to give reasons for disagreeing with them;

(3) the Council failed to give clear reasons for departing from the decision in the Medway Appeal;

(4) the OR materially misled the planning committee in a number of respects.

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...