Friends of Gillingham v South Norfolk District Council - Planning Permission Challenge

| | [Home ]
[Databases ]
[World Law ]
[Multidatabase Search ]
[Help ]
[Feedback ]
[DONATE ] | |
| # England and Wales High Court (Administrative Court) Decisions | | |
| You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >>

  Friends of Gillingham (Norfolk) Countryside Community Interest Company, R (On the Application Of) v South Norfolk District Council [2026] EWHC 777 (Admin) (31 March 2026)

URL: https://www.bailii.org/ew/cases/EWHC/Admin/2026/777.html
Cite as:
[2026] EWHC 777 (Admin) | | |
[New search ]

[Printable PDF version ]

[Help ]

| | | Neutral Citation Number: [2026] EWHC 777 (Admin) |
| | | Case No: AC-2025-LON-003091 |
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT

| | | Royal Courts of Justice
Strand, London, WC2A 2LL |
| | | 31 March 2026 |
B e f o r e :

TIM SMITH
(sitting as a Deputy High Court Judge)

Between:
| | THE KING
on the application of
FRIENDS OF GILLINGHAM (NORFOLK) COUNTRYSIDE COMMUNITY INTEREST COMPANY | Claimant |
| | - and ? | |
| | SOUTH NORFOLK DISTRICT COUNCIL | Defendant |
| | - and ? | |
| | TODHUNTER LIMITED | Interested Party |

**Mr Charles Streeten (instructed by Sharpe Pritchard LLP) for the Claimant
Mr Ben Fullbrook (instructed by Birketts LLP) for the Defendant
The Interested Party did not appear and was not represented

Hearing date: 24th March 2026**

HTML VERSION OF APPROVED JUDGMENT ____________________

Crown Copyright ©

3. This judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives.
5. .............................
8. MR TIM SMITH (sitting as a Deputy High Court Judge):
9. This is my judgment following the oral permission hearing in the above case. I heard oral argument from the parties on the afternoon of 24 th March 2026. At the conclusion of their submissions I indicated that I would reserve judgment on the question of whether permission should be granted, owing to the late hour.
12. This case concerns a challenge to the grant of planning permission by the Defendant Council. The Claimant is a representative of a group of objectors to the planning application.
15. In 2023 the Interested Party submitted a planning application to the Council seeking permission for an expansion to roadside services which it operated. Various complementary uses were included in the planning application. The provision of battery energy storage facilities was one such use.
18. The Council consulted upon the application. A number of objections were received. Over the course of a number of months the Interested Party amended the documents and plans supporting the planning application and submitted these amendments formally to the Council. A number of statutory consultees who had maintained objections to the proposals withdrew them on the strength of the amended details. Meanwhile representatives of the Claimant were monitoring the Council's planning portal but say that not all of the amended documents were made available promptly, and that re-consultation by the Council did not take place as it should have done.
21. The application was to be reported to the Council's Planning Committee for a decision. Officers drafted a report for the Committee in the usual way on 28 th May 2025, recommending the grant of planning permission, with the intention that the application be reported for a decision at the Committee meeting on 4 th June 2025. Shortly after this report was made available, the Interested Party amended the proposals further to remove the battery storage element.
24. Objectors complained that a meeting on 4 th June gave insufficient time for them to consider the various amendments that had been submitted, and the Council agreed to defer the item from the 4 th June Committee and report it instead to Committee on 2 nd July. The Council notified third parties of the change to the date on 9 th June, and revised site notices were re-erected on 10 th June. The former advised that re-consultation was taking place until 23 rd June. On 24 th June a revised officer's report was published with a recommendation, again, that planning permission be granted.
27. The application was reported to Committee on 2 nd July. Officers gave a presentation to members and objectors were permitted to address the Committee. The time allotted to objectors to speak was split between more than one speaker. Both parties cite discussions that took place at Committee. I was informed that there is an official video recording of the Committee proceedings which the parties viewed and now quote from. There is no dispute from either of them that the extracts quoted by the other is inaccurate in any way, and I have therefore assumed that the quotes present a fair record of the Committee debate.
30. Following the presentations and a debate, members of the Committee resolved to grant planning permission in accordance with the recommendation. The permission was granted on 25 th July 2025.
33. The Claimant mounts five grounds of challenge against the permission, which I address in more detail below.
36. All grounds were dismissed as being unarguable by David Elvin KC (sitting as a Deputy High Court Judge) by his order dated 9 th February 2026. All grounds were renewed by the Claimant. On this basis the case came before me for hearing.
39. Ground 1 is that members were misled into believing that a permissive public footpath over the site would be guaranteed to be available at all times. Although the planning permission contains conditions concerning the footpath, none of these require dedication. In any event ? submitted Mr Streeten, who appeared for the Claimant ? a condition cannot have the effect of requiring dedication as a public right of way (a point established by the Supreme Court decision in DB Symmetry Limited v Swindon Borough Council [2022] UKSC 33).
42. For the Council Mr Fullbrook accepted that this was the effect of DB Symmetry but submitted that the ground of challenge was fundamentally flawed, because (as the debate at Committee illustrates) at no point was it suggested to members that the footpath would be guaranteed to be available at all times any more so than it is now.
45. I am mindful of the case-law that counsels against too great a reliance on a transcript of Committee debates. It is well understood that ? as I put it to Mr Streeten in oral argument ? the debate ebbs and flows, and there is a danger in placing too much reliance on a single statement out of context. I accept as correct the submission from Mr Streeten that interventions in the debate by officers may also be considered when attempting to discover the outcome of members' deliberations and what was important to them (see Wesson v Cambridgeshire County Council [2024] JPL 1423, per James Strachan KC (sitting as a Deputy High Court Judge)) but the warning to be cautious about relying on the debate was repeated by Mr Strachan KC in that case too, and I must be mindful of it here.
48. Having reviewed the various extracts of the officer's report and the extracts from what is said to have been the debate at Committee, presented by each party in their pleadings, it is tolerably clear that the issue of concern to members was not the status and guaranteed public access to the footpath so much as whether its dimensions were adequate. The status of the footpath as being only permissive was stated and restated in the debate, and it is not apparent from the debate that members considered it important to somehow guarantee access to it on a permanent basis. By contrast, although I accept that there was an exchange between Councillor Thompson and the case officer, Mr Smith, concerning whether conditions could be strengthened to make sure that the footpath "is open 24/7" it is not apparent that this was a pivotal point for Councillor Thompson, let alone for the decision-making Committee as a whole, such that the failure to secure it could vitiate the decision.
51. On the evidence I accept Mr Fullbrook's complementary submissions that (a) members were not promised that the footpath would be 'upgraded' to any more secure status than the current permissive path, and (b) the real concern evident from the debate was with whether the width of the existing path was sufficient for it to be used by both pedestrians and cyclists ? something which the conditions do address. Subsequent references in the debate to a " proper cycleway and footpath" must be read in that light.
54. Once this point is understood, there is neither a failure to secure anything which members were assured would be secured, nor can there be any complaint about unlawful conditions imposed on the grant of planning permission contrary to the principle established in DB Symmetry.
57. Mr Streeten submitted that the point was at least arguable, and that the right approach would be for me to grant permission so that the full debate could be examined in context at a substantive hearing. I do not agree. Neither party has suggested that there was more of relevance in the debate beyond the passages that they already quote from, and so this submission seems to me to go nowhere.
60. Finally Mr Streeten referred me to condition 8 on the grant of the original permission for the roadside facilities, in 2020, which refers to the footpath in question and requires that it "be implemented and retained in perpetuity for public use with the development". This, he submitted, signals that the Council already thought (mistakenly) that the path was due to be available "24/7", and that ? had they realised this error ? they would have required the provision of 24/7 public access now by the only means available to them, namely a planning obligation. I do not accept the interpretation which Mr Streeten seeks to place on condition 8. A requirement to retain what is to be provided "in perpetuity" does not mean that public access has to be guaranteed at all times. It simply means that the footpath, once built, has to be retained. "In perpetuity" refers to physical retention, not to access. Retaining the footpath but with limited hours of access by the public (or even no access by the public) does not infringe the 2020 condition.
63. For these reasons I conclude that Ground 1 is not arguable.
66. Ground 2 alleges unfairness, both as to the procedure adopted by the Council to consultation on the various amendments, and substantively as to whether that which was permitted was fundamentally different from that which had been applied for.
69. As to the first point, the application was withdrawn from the originally intended Committee date specifically to allow third parties the opportunity to take stock of, and comment upon, the amended details. I have evidence from Ms Williamson for the Council which appends details of the re-consultation letter and the site notice from after the deferral from the original Planning Committee.
72. The Claimant complains that not every objector received the notice, but as to that (a) I consider there was no requirement to send the letter to every objector, only to reconsult in a manner roughly equivalent to that which applied to the original consultation exercise. Mr Streeten disavowed any legitimate expectation argument ? in my view, rightly so; and (b) as the Claimant's grounds make clear, objectors were aware of the changes (this being the reason why they had urged a deferral of the application) and were monitoring the Council's planning portal on a regular basis. Objectors local to the site can also be taken to have seen the site notice.
75. The Claimant also complains that 14 days was insufficient time to be able to assess and comment on the documents, especially bearing in mind that there was (as Mr Streeten put it) a "drip-feed" of further amendments coming through during that period. Having established that the Claimant is not mounting a legitimate expectation argument about the manner of re-consultation, what matters is whether the process adopted by the Council for consultation on the amendments was objectively reasonable. I consider that 14 days was reasonable. Although it is the case that other documents were being submitted during that period (for example an updated arboricultural assessment and landscaping scheme), I accept the submission from Mr Fullbrook that these documents revealed amendments which were consequential upon, and incidental to, the main change ? namely the removal of the battery storage element of the proposed scheme.
78. I do not therefore consider that any prejudice has been caused by any failure to notify objectors individually, or that the re-consultation exercise undertaken by the Council was procedurally unfair or unlawful.
81. As to substantive prejudice, Mr Streeten cites the cases of R (Holborn Studios Limited) v LB Hackney [2017] EWHC 2823 (Admin) and Wheatcroft (Bernard) Limited v Secretary of State for the Environment (1982) 43 P&CR 233. He submits that these cases confirm that amendments can only be made to a planning application to the extent that they do not render the development substantially different from that applied for and consulted upon. For the Defendant Mr Fullbrook cites Breckland District Council v Secretary of State for the Environment (1993) 65 P&CR 34 as authority for the proposition that whether an amendment renders the development "substantially different" is a matter of planning judgement which can only be reviewed on standard Wednesbury grounds.
84. In this case the principal amendment complained of is the deletion of the battery storage element from the scheme, with the consequence that the application red line shrank to remove the land on which this element would have been developed, and with consequential amendments to the landscaping scheme given that the battery storage element was no longer present and in need of vegetation screening. Mr Fullbrook submitted that the Council's exercise of planning judgement that the scheme is not rendered substantially different (a) can be seen from the fact that no reliance was placed on the battery storage element as a significant benefit of the scheme, and (b) this much can in any event be inferred from the fact that officers continued to recommend the application for approval even after the battery storage had been removed from the application.
87. In this instance I am satisfied that removal of the battery storage element did not arguably render the development substantially different from that applied for, and that there are no grounds for interfering in the Council's planning judgement to that effect. The battery storage was not pivotal to the decision to approve the application.
90. Ground 2 is not arguable.
93. Ground 3 concerns the alleged failure of the Council to require policy-compliant sequential site assessments for retail and flood risk purposes. Amongst the complaints made by the Claimant are the fact that (a) the retail sequential assessment was based on the premise that disaggregation of the retail elements of the development was not required; (b) the assessments were "out of date", meaning that they were dated 2023 and officers had not specifically considered whether they remained valid despite the passage of time; and (c) the flood risk assessment did not comply with the requirements of the PPG on how to conduct flood risk assessments ? for example because it contained no evidence of a wider land search.
96. The Interested Party did include sequential assessments as part of its application material. This is not therefore an omission on its part. The Claimant is left having to argue that the way in which the assessment was conducted was inadequate, and/or that in accepting at face value what the applicant had presented the Council failed in its Tameside duty of enquiry.
99. The officer's report considered the sequential assessments in some detail, noting (in relation to flood risk) that parts of the site were at risk of surface water flooding. Officers noted that there was no flooding objection from either the Environment Agency or the Local Lead Flood Authority. The officer's report also discusses what is known about flood risk in the area generally ? something which, even absent express references, members of a Planning Committee can be taken to know about their local area. The references in the report to Committee are abbreviated, but not to the extent that the Council's conclusions cannot be discerned.
102. In relation to disaggregation for the retail sequential assessment, it would be rational for the Council to conclude that where (as here) the proposals were for an extension to an existing facility, disaggregation to place the component elements of the extension anywhere other than next to the facility they are extending would be a wholly artificial exercise.
105. So far as the Tameside duty is concerned, it is not so broad as to require a public authority to strive for perfection. If what was done was (under ordinary public law principles) adequate, then the duty of enquiry does not compel a public authority to make enquiry to improve on it further.
108. In addition, whilst complaining that the material provided by the Interested Party was "out of date" the Claimant cannot point to anything absent which it says a more up to date assessment would have revealed. It does not, for example, present any particular site for consideration that it says has been overlooked. For the Claimant, Mr Streeten maintained that this was not the Claimant's duty. Nevertheless, it seems to me that the Claimant must do more than just point to aspects of policy guidance which it says were not adhered to in the compilation of assessments which policy requires. It must point to some alleged consequences of the failure, meaning something that a compliant assessment would have revealed but which was not revealed by what was done.
111. On this last point, Mr Streeten was adamant that the above argument, which I posited to him in oral argument to that effect, was in effect a summary of the Senior Courts Act 1981 section 31 criteria that the court should apply if it is to exercise its discretion not to grant relief; that it falls to the Council positively to show that (in the words of section 31) it is highly likely that the outcome would not have been substantially different had the error not occurred, not for the Claimant to show that such an argument cannot be sustained; and that (per Singh LJ in R (Greenfields (IoW) Limited) v Isle of Wight Council?[2025] EWCA?Civ?488) if the Council does wish to advance an argument based on section 31 it must produce evidence of the likely outcome, and it has failed to do so here.
114. I do not accept Mr Streeten's submission. The fundamental error upon which it is based is that it assumes a failure to follow the relevant practice guidance on the conduct of sequential assessments will always be a legal error entitling the Claimant to the grant of relief. I do not accept that that is the case. Mr Streeten's submission bypasses the logical prior question of whether the approach adopted by the Council was a legal error. Guidance in the PPG is just that - guidance. It is not mandatory in the sense that a failure to follow it necessarily constitutes a legal error leading to a presumption that the Claimant is entitled to a remedy. The Claimant can point to no adverse consequence of the Council adopting the approach it did. In my judgement there is an important difference between the Council maintaining the adequacy of the assessment it undertook, and the Council accepting that it made a mistake but arguing (as section 31 permits it to do) that the mistake it acknowledges it made did not affect the outcome. This case is firmly in the first camp. The Claimant can only succeed with this argument if the assessments undertaken by the Council were irrational. On the information before the Council, I cannot conclude that this was arguably the case. Nor is it material the fact that a different position is taken in Summary Grounds of Resistance to the position adopted in the reply to pre-action protocol correspondence. It is the former that sets the framework for the defence. If there is an inconsistency between the former and the latter then the consequence is, at most, one related to costs. The terms of the pre-action protocol response cannot foreclose the opportunity for the Council to mount the case which it now stands behind.
117. Ground 3 is not therefore arguable.
120. Ground 4 alleges that the Council unlawfully declined to impose a condition related to waste water capacity. There are two limbs to this broad complaint: (a) that the Council's decision not to impose a condition preventing occupation was unlawful, and (b) the conclusion that the development would not give rise to additional waste water discharges simply because no overnight accommodation was being provided was irrational.
123. Anglian Water as the relevant statutory undertaker had been consulted on the proposals. It had confirmed that currently there was sufficient capacity at the Beccles-Marsh Lane Water Recycling Centre to accommodate the additional flows from the development, but that the Centre may require upgrades in the future and ? hence ? a condition should be imposed on the grant of permission requiring that, prior to occupation of the development, it should be demonstrated that sufficient headroom would continue to exist at the centre to absorb the impacts of the development and its generated flows ? especially given the proximity of the development to both an SAC and an SPA.
126. Officers considered this request in some detail in the report to Committee. They concluded that the requested condition was neither reasonable nor precise enough to be imposed. As such they declined to impose the condition.
129. It is noted that Anglian Water has proposals for capital investment in this Centre in the period from 2025-2030 which are not dependent on contributions from this scheme. Officers also noted that no evidence had been provided that a failure to impose the condition would result in any likelihood of harm to the protected habitats. This conclusion was unsurprising in circumstances where Anglian Water accepted that, at present, there was sufficient capacity within the sewage network to accommodate additional discharges.
132. Precision and reasonableness are tests which are relevant to the decision whether or not to impose a condition. Officers clearly articulated their reasons for why these criteria were not met by Anglian Water's request, and ? on the evidence ? they are not even arguably irrational. They exercised their planning judgement and the court will not interfere absent irrationality. I do not see that being present here.
135. As to the second limb, to my mind this can be answered by the same point as can the first limb. The statutory consultee had advised that there was sufficient capacity in existence to absorb additional demand from the development. That view does not appear to rely on any mistake linking the need for additional capacity to the presence of overnight stays.
138. Ground 4 is not arguable.
141. Finally Ground 5 relates to the EIA screening. This ground has spawned a number of supplementary submissions from the Claimant in its reply (which was admitted in the case by the order of Mr Elvin KC) following the explanation provided on behalf of the Defendant, in particular whether the grounds of resistance are consistent with the Council's pre-action protocol response and the Council's duty of candour as a public authority.
144. In truth, the most recent submissions from the Claimant on this point have generated more heat than light.
147. The Council's planning portal recorded a screening opinion by the Council. It is criticised by the Claimant for appearing to be internally contradictory, responding to the question "is an environmental statement required?" with the answer "no" but then responding to the question "is [the development] likely to result in a significant effect? Yes/no ? why?" with the answer "yes", followed by further explanatory text.
150. It is necessary to consider the full text of the answer "yes ?" to understand what it is saying. The full text is as follows:
152. "Yes. Although noise, vibration and light pollution during construction would be temporary in nature, any longer-term impact from noise and lighting during the operational phase would not be considered as being significant given the current background noise/light levels, controls through conditions, level of screening and proximity of the nearest residential (sensitive) receptors"
154. The answer does two things: it splits the consideration between temporary and permanent effects, and it assesses the residual likelihood of significant environmental effects after factoring in the presumed effect of standard mitigation (for example "controls through conditions" and "levels of screening").
157. As to temporary and permanent effects, it is clear from the context that permanent effects were not considered likely. Moreover, whilst permanent effects were separated from temporary effects, there is no positive conclusion that temporary effects themselves are likely to be significant.
160. As to the effects of mitigation, Mr Streeten accepted that the authorities upon which he relied in his skeleton argument all relate to the screening for appropriate assessment under the Habitats Regulations, not screening for EIA. By contrast, case-law confirms that it is permissible to have regard to the predictable effect of mitigation measures when screening for EIA. In conceding this point Mr Streeten submitted that there was nevertheless a read across to Ground 4, given the potential impact on protected habitats, but in view of what I have concluded on Ground 4 there is no need for a read across to be undertaken on the facts.
163. Mr Streeten objected to the Council arguing that the original screening decision was a "typographical error" in the absence of witness evidence substantiating the argument. He relies, again, on the Greenfields case as authority for the proposition that after-the-event explanations of the evidence should be the subject of their own evidence, not merely submissions. But I do not consider that the dicta of Singh LJ in Greenfields applies to this particular argument. Mr Fullbrook's argument is that the text of the screening opinion is self-evidently a typographical error given both its context and the fact that it contradicts a previous clear statement of opinion in the same document that an environmental statement is not required. The submission does not rely on any evidence about what did or did not happen, nor does it need to. It is a self-standing submission that merely invites me to interpret the written words in the context of the rest of the documentary evidence that is already in the case. That evidence does not need to be supplemented with anything to permit the submission to be made and considered.
166. Read fairly as a whole and sensibly, it is clear what the Council's original screening opinion was saying. It was not answering "yes" to a question "are there likely to be significant environmental effects, as understood under the EIA Regulations, once the effects of mitigation are taken into account". I have no difficulty in concluding that the single word "yes" was in error when read in context, and that it does not mean what it appears to say.
169. I would add that, in my judgement, what transpired subsequently with the "clarificatory" replacement opinion has no bearing on the planning issue to be determined. Based on the wording of the original screening opinion, without any later attempt at 'clarifying' it, I see no error in what the Council did. I note the allegations levelled by Mr Streeten at the conduct of those advising the Council who have provided evidence in this case, and at inconsistencies with the pre-action protocol letter, but I expressly decline to comment on those allegations as they do not bear on the point that it falls to me to decide.
172. Ground 5 is not arguable.
175. I have concluded that none of the grounds are arguable. It follows that permission for judicial review is refused.
178. I now invite the parties to agree an appropriate form of Order.

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: https://www.bailii.org/ew/cases/EWHC/Admin/2026/777.html