Neutral Citation Number: [2007] EWHC 760 (Admin)
Case No: 2190/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 04/04/2007

Before :

 MR JUSTICE WILKIE
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Between :

	ORANGE PERSONAL COMMUNICATIONS SERVICES LTD	Claimant	
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	BIRMINGHAM CITY COUNCIL	Defendant	
	and		
	SMALLDENE (MIDLANDS) LTD		
	Interested Party		

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(Transcript of the Handed Down Judgment of
WordWave International Ltd
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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 Carine Patry-Hoskins (instructed by Burges Salmon) for the Claimant
Peter Goatley (instructed by Birmingham City Council Legal Services) for the Defendant

Hearing dates: 29 March 2007
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Judgment
MR JUSTICE WILKIE : 
1.	Orange Personal Communications Services Ltd (Orange) seeks to review two linked decisions of Birmingham City Council (the defendant) Planning Committee of 8 December 2005 to grant planning permission to Smalldene (Midlands) (Smalldene) for a change of use of land at Armoury Road from former industrial land to land for parking of up to 14 lorries (a sui generis use).   The claim sought to challenge this decision on four grounds.   Mr Justice Collins granted permission to seek judicial review on three of those grounds on 20 April 2006 and the parties are agreed that the claim may now only be advanced on two grounds.   Those grounds are respectively:
1.  that a misdirection by the planning officer to the planning committee in the course of its meeting on 8 December 2005 constituted a material error of fact and
2.   that in the report to Committee the officer irrationally advised the committee to give no weight to certain submissions of the claimant, alternatively, having advised the committee to ignore the only evidence on a particular issue irrationally advised them nonetheless: that they could grant planning permission subject to certain conditions and; that she did not anticipate that the problem alluded to by the claimant would arise sufficiently to warrant refusal.   It is said that she had no evidential basis for giving this advice having indicated that she had attached no weight to the only evidence she had on the subject.
Facts/planning history
2.	The claimant owns a site on a light industrial site in Small Heath.   It is known as the switch site and it houses an important telecommunications switch which has operated on the site since 1992.   Immediately adjacent to the switch site is the site owned by Smalldene.   The two sites share a privately maintained access road.   A car park, owned by Smalldene but leased and operated by the claimant for its employees, is situated on the opposite side of the access road to the switch.   The Birmingham switch is one of twenty one core sites in the Orange national network and plays an integral part in that telephone network.   As a result of its location in the network and the substantial number of customers it supports, it is said, arguably, to be the most important of the core sites within the network and an essential component in the receipt, transmission and processing of mobile telecommunications within the claimant’s network.   It is said that the loss of its operation, either temporarily or permanently, would have a severe impact on the claimant’s ability to provide mobile coverage to the Birmingham area, on the continued expansion of its network and on its ability to achieve its third generation licence obligation and meet its statutory obligations on coverage and continuous service.   Those obligations have most recently been given statutory effect in the Communications Act 2003 and the Civil Contingencies Act 2004.
3.	The switch building contains highly sensitive equipment for routing calls around the midlands region and nationally.   It has had fitted an environmentally controlled and protected facility for the operation of highly sensitive computer based telecommunications equipment.   The site also contains air conditioning units the majority of which are adjacent to the access road which are employed, together with fire suppressant systems, to maintain a sterile environment within the switch.   Any significant increase in general dust and pollution within the air conditioning units, or the building environment, increases the risk that the building defences will be breached and that the environmental integrity, which is essential the claimant’s operation, will be prejudiced leading to equipment failure.   The claimant is concerned that vehicles travelling past the switch site on the access road in order to gain  access to the Smalldene site are particularly likely to generate increased resuspension of dust on the roadway, the likely amount depending on the type of load being carried along the access road and on whether the road is wet or dry.   Further, any significant volume of HGV traffic using the access road would create a risk of an accident which could lead to damage either to the air conditioning unit, to the switch building itself or to the sensitive equipment within the switch building.   
4.	Mr Feeney is the national technical manager of the claimant.   His evidence is that the claimant occupied the switch site first in 1992.   From that time the Smalldene site remained vacant and unused and it is the claimant’s understanding that that site had been vacant and unused for a great number of years.   There is no evidence to contradict this.   In a document submitted by the claimant in 2004 in respect of another planning application for the Smalldene site the claimant said that “it would appear likely that the lawful use may be based on B1, B2 and B8 having regard to historic usage.   However the site has now been cleared and it is therefore clear that no operational development can occur without planning permission the adverse impacts of which on surrounding occupiers are material considerations.”
5.	The planning application was for change of use from vacant industrial land to a vehicle depot for up to 14 lorries and 6 construction vehicles (sui generis).   Prior to this application, in September 1998 the predecessor in title of Smalldene, ARC Ltd, was given planning permission subject to conditions for the installation at the site of a concrete pre-mix plant.   None of the conditions forming part of the permission related to the number of vehicles to be used on the site or the number of movements of vehicles, whether HGV or otherwise, along the access road.   In connection with that planning application, on 17 June 1998 the claimant, through its solicitors lodged an objection on the grounds of potential interference from dust and traffic congestion. In particular, amongst other things, it objected to the potential nuisance arising from either dust from pre-mix lorries or mud and other sources being deposited on the highway and parking areas used by Orange and  interference to the very sensitive electronic equipment operating as part of, and in association with, the switching centre as a result of dust from the pre-mix plant.   It also stated that it should be demonstrated that the larger vehicles, which will be used to access the site and will have to travel along fairly narrow roads to the site, will not result in congestion or highway danger.   On 10 July 1998 the claimant withdrew its objection to the ARC planning application.   In a letter of that date to the defendant they wrote to inform the defendant that, following negotiations between the claimant and ARC, the claimant’s concerns had been addressed and therefore they withdrew their objection.   Accordingly the planning permission was granted without that objection being pursued.
6.	On 19 August 1999 Hanson Quarry Products Ltd, who had become the owners of the site, were granted planning permission for use of the land for storage and distribution of quarry products and asphalt, storage bays, a weighbridge and weighbridge office.   This was subject to conditions which, once again, did not relate to the number of vehicles or vehicle movements along the access road or within the site.   On that occasion the claimant wrote to the defendant on 16 April 1999.   It lodged an objection on grounds of health and safety as a result of intensification of use of the access way used by its employees for parking.   This objection was never withdrawn.   Mr Feeney says in his witness statement that in 1999 he had had a conversation with a Mr Wilcox who owned the site.   Mr Feeney was informed by Mr Wilcox that he was in the process of securing a leasing agreement with Hanson as a result of which Mr Feeney informed the author of the objection letter who made contact with Hanson’s estate department.   In due course Mr Feeney was invited to meet Hanson’s estate department to discuss their intended use for the site.   The Hanson representative explained that the property was identified in a current tender and they would be using it for the storage or batching of building materials.   Mr Feeney highlighted the claimant’s concerns to Hanson on issues concerning dust, vibration and the amount of vehicle movements.   He was informed by Hanson that it was unlikely that the property would be used by Hanson because the leasing agreement was insufficient for the investment needed to bring the property into operation and that, if they did win the contract, they would supply materials from another location.   Because of that it was felt that the Hanson development would not pose any risk to the operation of the switch at that time.
7.	Neither the 1998 nor the 1999 planning permission was ever implemented and in due course they expired.   Indeed the site remained vacant as described in the Smalldene application and permission.   
8.	The Hanson lease expired in early 2004 and the property was sold in May 2004 to Smalldene.
9.	In November 2004 Smalldene made an application for planning permission in respect of the site for a change of use to a waste handling and storage development.   On 30 November 2004 the claimant lodged an interim objection  raising, amongst other things, the proximity of the proposed access road to the switch cooling equipment and the increased dust and particulates which could interfere with the operation of the switch.   On 20 December 2004 the claimant lodged its full planning objection appended to which were, amongst other things, an environmental report by Enviros.   That full objection contained a number of parts.   Part 5was entitled “Environmental Effects of the Proposed Development”.   Within that part paragraph 5.2 read as follows:
“ 5.2.   Dust and debris (S4 Enviros report)
Enviros assessed the level of particulates that might be expected to arise as a result of the proposed development.   Identified sources of dust include
•	fine particulates from vehicle exhausts along the proposed service road
•	dust resuspension resulting from vehicle movements…
from their investigations Enviros have been able to model the likely increase in dust and particulates generated by the proposed development.   For example, as an approximate indication, the amount of dust generated by depositing or moving one tonne of waste is estimated by Enviros to be in the range of 0.2 to 2 grammes per tonne of waste.   This figure depends to a large extent on the moisture content of the materials.   Based on the handling of 400 tonnes a day with typically one movement within the site for all materials received, this would give rise to 160 to 1600 grammes of dust per day (4.3.1 Enviros report).
Vehicles travelling past the Orange switch site are identified as particularly likely to result in increased resuspension of dust on the roadway.   The possible scale of this has been assessed by Enviros.   Dust resuspension could result in the generation of 1 to 10 kilograms of dust per day, depending on the loading of dusty materials on the road, and whether the road is wet or dry.   This is approximately equivalent to 10 to 100 times the rate of emission of dust from the exhaust of a slowly moving heavy goods vehicle (4.3.2 Enviros report.
Having taken into account all potential sources of particulates, Enviros conclude that the proposed development is likely to lead to an increase of dust levels at the Orange switch of between 50% and 500% of current dust levels (4.6 Enviros report).”
Part 6 of that full objection was entitled “Impact of the identified environmental effects on the switch”.   At paragraph 6.4 the objection states as follows:
“The external air conditioning plant described above is located adjacent to the existing service road.   At present traffic on this service road is confined primarily to staff vehicles and the occasional delivery lorry which pose a minimal risk as there entry and egress is carefully controlled by Orange on site security.   
The planning application is clear in that the service road to the site will be replaced by a 6 metre concrete roadway with surrounding concrete aprons.   This would place the roadway immediately adjacent to the planned area.   There is very little that can be done to protect this plant area from vehicle impact from the predicted 60 plus heavy vehicle movements a day.   Given the close proximity of the plant area to the proposed access road and the number of vehicles expected to use the service road, there is much greater risk of accidental impact.   Loss of the plant area would cause the shut down of the switch within a 30 minute time frame as temperature increases on the switch floor with the loss of the air conditioning would require a shut down of the systems.”
10.	By 24 May 2005 it came to the claimant’s notice that the planning application in respect of the waste transfer station had been or was about to be withdrawn and it is common ground that it was.   
11.	The planning application in respect of the lorry park indicated that there would be a total of 24 parking spaces within the cartilage and a total of 9 employees.   The application at that stage was for use of the land for parking of a vehicle fleet up to a maximum of 14 lorries.   The vehicle movements were described as follows:
“Vehicles will normally leave the site at approximatelyn7am in the morning to ensure arrival at site to suit customer demands and will return at any time until 7pnm in the evening.   
The company presently has a fleet of seven 20 ton lorries but provision has been made within this application for a doubling of the fleet which is easily accommodated on site.
Staff vehicles are estimated at 3 vehicles per day in addition to drivers arriving to collect and leave their vehicles.”
On 15 September 2005 the planning consultants acting for Smalldene supplied some further information.   It included the following statements:
“The current fleet of 7 vehicles operated by Smalldene will leave the site between 0545 and 0700 to ensure that they arrive on site for the start of the day.   They will not return to the yard unless their shift is complete.   All Smalldene vehicles are maintained off site under contractual obligations with the vehicle supplier.   They are maintained at night so as to be available for their day time duties.   Vehicles may therefore leave and be delivered to the site during the night time….It is not intended to clean vehicles on site…,vehicles entering the site will generally be unladen unless a collection has been made for an early delivery in which case the vehicle may return to the yard in the evening laden.   In that event the vehicle may be sheeted depending on the type of load being transported.”
12.	On 3 October 2005 the Smalldene planning consultant provided yet further information vehicle movements.   They said as follows:
“The anticipated maximum number of vehicle movements, if the company achieve their target of 14 lories would be, 14 drivers arriving and departing each day, 14 lorries leaving and returning each day, 3 office admin staff vehicles in and out each day.   In addition it may be anticipated that an additional number of servicing and delivery vehicles of 2 per day on average would visit the site.
The general hours of operation of lorries starts at 0530 and normally ceases around 1700 hours.   However some public works are undertaken during the evening and these contracts need servicing, it would therefore be inappropriate to try to impose a time limiting condition.   Contract maintenance vehicle suppliers generally carry out servicing of vehicles in the night to allow better utilisation of vehicle time.
The vast majority of lorries returning to the yard in the evening will be unladen.   There will, however, be times when either the vehicle has been loaded and is unable to deliver its load to the customer or the customer may demand  an early load before the quarries or suppliers are open.    The operators and drivers are responsible to prevent dust being blown from the vehicles and the duty of care imposes additional requirements in the case of waste materials.   Smalldene’s fleet has sheeting ability and any loads likely to give rise to fugitive dust shall be sheeted.”
13.	On 22 August 2005 the claimant wrote to the defendant objecting to the grant of planning permission.   It summarised its concerns as follows:
“Orange is highly concerned about the current proposals for development on this site for a lorry park, together with office facilities due to, for example
•	the proximity of the proposed access road to the switch cooling equipment
increased dust and particulates which could interfere with the operation of the switch
•	the impact of increased vibrations
inadequate access to the public highway and associated safety issues”
To that letter of objection was attached a document setting out the contention that the level of information provided by the applicant was insufficient to enable adequate determination of the likely impacts of the proposed development on the switch and set out in detail its reasons for that.   This included the complaint that no details had been provided as to the total number of vehicle movements to and from the site each day or the days on which the site would operate.   It also indicated that there was an absence of information about times of operating, about vehicle cleaning, about whether the lorries would be empty or loaded, about the implication of 24 car parking spaces being provided where the total number of new employees was said to be nine and other matters.   It appears that the letters from the Smalldene planning consultant dated 15 September and 3 October, already referred to, were responses to the requests for further information made by the defendant arising out of the correspondence with the claimant.
14.	On 1 November 2005 the claimant lodged its full objection.   The objection began in part 1 by identifying supporting information to the objection.   It said as follows:
“Attached to this document are three documents that should be read in conjunction with the objections set out below.   These documents comprise: 
a.  the full statement of objection to the waste transfer station December 2004
b.   letter of holding objection to the office lorry park application 22 August 2005
c.   statement of additional information required from applicant (submitted with b.).”
Part 2 of the objection contains comments on the applicant’s additional information.   Part 3 of the objection contains Orange’s objection to these applications.   In particular it says as follows:
“Orange objects to these applications on similar grounds to those it raised against the proposed waste transfer station.   It does so because many of the adverse impacts anticipated from the lorry movements associated with the waste transfer station are also associated with the proposed lorry park.
In this regard Orange refer the LPA to the original objection to the WTS..and in particular section 5.2 relating to dust from vehicle exhausts along the proposed service road, dust resuspension resulting from vehicle movements and dust released from unsealed containers during transportation to/from site.   Whilst the predicted levels of particulate from the lorry park will not include the element associated with handling wastes on site it is clear that there will still be a substantial increase in dust from HGV movements in close proximity to the sensitive power supply, air conditioning and fire alarm/suppressant systems referred to in section 6 of the objection.   The increased risk of accidental damage referred to at section 6.4 of the objection also remains a relevant objection to the lorry park/office application because of the combination of the volume of HGV movements and the close proximity of them to the Orange equipment….In all other respects the importance of the Orange switch, both in terms of the network and planning policy support for it, remains the same as set out in the earlier objection and remains entirely relevant to the lorry park/office applications.”
15.	It is not clear from this objection whether it was explicitly intended that the Enviros report, attached to the previous full statement of objection, was to be sent to the defendant as part of the objection to the present planning application.    The claimant suggests that it was and that it was sent.   The defendant says that it never received the Enviros report as part of this particular objection.   There is no dispute that this is the case.   In any event, in my judgment, the current objection draws particular attention to paragraphs within the full statement of objection to the proposed waste transfer station and, although that document in those paragraphs refers to points made in the Enviros report, in my judgment the full objection can be read as a complete document and it wasn’t necessary for the defendant to look out the Enviros report or to ask the claimant to supply it as the full objections could be properly taken account of without the need to refer to that document.
16.	The planning committee met on 8 December 2005.   It had before it a report.   It is clear that by this stage the application had changed and was now for change of use from vacant industrial land to vehicle depot for up to 14 lorries and 6 construction vehicles (sui generis).   The report describes the site and surroundings as comprising predominately vacant industrial land, the surrounding area being predominately a mix of business, industrial and/or sui generis uses, including the Orange switch station adjacent to the site.   The report summarised the consultation and planning permission responses. In particular, it records the interim objection and the full objection on behalf of the claimant.   In that summary it includes the following passage:
“We submit an objection to a previous application for a waste transfer station as we anticipate adverse impacts would be similar, in particular:
•	dust from vehicles along access in close proximity to sensitive power supply, air conditioning and fire alarm,/suppressant systems;
•	increased risk of accidental damage including conflict between vehicles;…”
17.	The report then sets out the planning history from 1990. It records the  granting of permissions in 1998 and 1999.   It also records the withdrawn application for planning permission in respect of a waste transfer station.   Unfortunately, and inaccurately, it describes that planning application in terms which are identical to the planning permission given in 1999.   There has plainly been a mixing up by the author of the report of the essence of the application in 2004.    Some mention was made of this, apparently without correction, in the meeting of 8 December 2005 but the claimant does not seek to rely on this as a substantive ground for seeking judicial review.   The planning history section also contains a brief history of the adjacent site from 1991 on.
18.	The report then sets out the policy context and identifies the various planning policies relevant to the application.   It then deals with planning considerations.   The report says amongst other things as follows:
“The application site is identified within the UDP (adopted 1993) and UDP (deposit draft 2001, second proposed changes 2002 and proposed modifications 2005) as good urban land for industrial development.   The UDP…states loss of industrial land to non industrial uses will be resisted except in cases where the site is a non conforming use.
The proposed change of use would be sui generis.   However I consider the activity appropriate to an industrial area and therefore do not consider loss of industrial land an issue.…an objection has been received from…Orange…the objection is primarily on the grounds that the proposed use would be non conforming with the switch station.    Orange...argue the proposed development would result in increased dust/particles and vibration, especially in relation to the proximity of the access to the switch station and sensitive equipment which would be detrimental to the operation of the switch station to an extent that could not be addressed through mitigating measures.   The impact includes works to the access, possibility of vehicles being loaded, surfacing not enabling washing, creating build up of dirt that would then be deposited on the access, and increased risk of accidental damage to equipment, including from conflict on the access.
PPG 8 telecommunications states possible interference with telecommunications from other developments can be a material planning consideration.   PPG 8 identifies two types of interference, electro magnetic and physical from large structures, neither of which is applicable in this instances.   Case law suggests that impact on adjacent businesses from increases in dust can be a material planning consideration. The application site is located within a business/industrial area and is classified as good urban industrial land. From planning history the last use of the site is unclear but B1, B2, B8 is likely and since 1990 permissions have included a waste transfer station type development…
[It is accepted that this description was erroneous and it compounds the error contained in the brief description of the planning history.   Once again the claimant does not seek to say that this is a ground for judicial review].
..Orange…argue dust/particles and vibration would be of a level to constitute harmful.   Orange..have not demonstrated harm in relation to the proposed development, but have re-submitted an assessment of harm which supported their objection to application…for a waste transfer station.   I consider the character of the proposed development to be different to that of a waste transfer station and therefore do not attach weight to the assessment of harm.
The proposed development would accommodate up to 14 lorries with anticipated movements of 14 drivers arriving and leaving each day and each lorry leaving and returning each day alongside three office staff and ancillary movements.   General hours of operation would be 5.30 to 1900.   However the applicant has requested that an hours of operation restriction is not applied to enable for example out of hours contracts to be serviced.   Given the nature of the surrounding area I consider unrestricted hours acceptable.   It is anticipated that the majority of lorries stored at this site would be unladen;  the applicant states that where lorries are loaded drivers have responsibility under …(statute) to contain materials and loads would be covered when appropriate.   Cleaning and servicing of vehicles would take place off site with exception of routine cleaning of windscreens, lights etc and routine maintenance.   The proposed development includes the storage of up to six construction vehicles for when plans is not being utilised on site….Given the scale and character of the proposed development, which could be controlled by a conditions, I do not anticipate an increase in dust/particles and vibration sufficient to warrant refusal.”
19.	The planning committee, comprising 15 members, met on 8 December 2005 to consider, amongst other things, this application.   The claimant was given the opportunity to make a short oral submission as was the applicant.   There was then a discussion amongst the councillors.   In addition to the official minute of the meeting there is an attendance note taken by the claimant’s solicitor who was in attendance.   It is not suggested that this attendance note is in any way inaccurate.   That attendance note shows five named councillors having contributed to the debate in terms which make it clear that they were addressing the claimant’s concerns about dust arising from the passage and re-passage of vehicles along the access road.   All save one of them (Councillor Mullaney) appear to indicate that they were content with the application subject to appropriate conditions.   A sixth councillor also spoke but the attendance note does not identify what he said.   From the minute it appears that that councillor and another spoke, addressing similar concerns and expressing similar views to the others that appropriate conditions would meet any concern.   Councillor Mullaney is recorded in the attendance note as saying as follows:
“He had heard good arguments from both sides and that alarm bells were ringing.   A hit by a lorry could take out the network in the Midlands region and he pointed out that the waste transfer application had been turned down die to concerns re dust”.”
20.	Shortly after this contribution the planning officer in attendance at the meeting (not the author of the report) is recorded in the attendance note as saying as follows:
“The permission listed on page 28 of the agenda (i.e. for storage and distribution of quarry products and asphalt with installation of storage bays, weighbridge and weighbridge office) was more severe than the use proposed.    He referred to this permission as being the current lawful use of the site and pointed out that Orange took possession of the site knowing that use could be far worse in the current application.   A condition could be added requiring tyre washing.   Much of the dust and mud might have fallen off by the time vehicles reached the site, but a condition requiring washing on site would not be in conflict with maintenance.   He thought this would be suitable particularly in view of the existing use.”
21.	According to the attendance note there was then a comment on traffic which that officer dealt with.   Mr Sidhu the legal officer was asked and stated that they had all the information required.   There was then a comment that the withdrawn application (2004) was in the same terms as the 1999 permission.   There was a brief discussion why this had been withdrawn but this was not pursued and the suggestion that the 1999 permission represented current lawful use was not challenged.   
22.	The attendance note then records that the chairman moved the approval of the application with conditions and it was approved unanimously.
23.	It is accepted by the defendant that what the planning officer said in the course of the meeting was inaccurate.   Whilst it was accurate to say that a planning permission had been granted in 1999 and that the permission, in terms of the number of vehicle movements along the access road, was more severe than the use proposed in that there was no limit to the number of vehicles which could access the site, it was inaccurate for him to say, as he did, that this was a present lawful use because, in fact, that use permission had expired unimplemented.   
24.	The permission granted, therefore, was for change of use from vacant industrial land to vehicle depot for up to 14 lorries and 6 construction vehicles (sui generis).   The permission was subject to a number of conditions in the interests of adjoining occupiers they included:
B1 that the parking and vehicular circulation areas were to be paved with a suitable material and drained,
B3 a scheme for washing vehicle tyres,
C4 the vehicle depot approved shall be used for no more than 14 lorries and 6 construction vehicles,
C7 vehicles shall not queue along the access to the site from Armoury Road and adjacent to the Orange switch station’
C11 no vehicles carrying loads shall enter leave enter leave or be parked within the site unless the load is heated.
Ground 1 mistake of fact
25.	It is common ground that a mistake of fact giving rise to unfairness can be a separate head of challenge as a matter of law.   The judgment of the court given by Lord Justice Carnwarth in E&R v Secretary of State for the Home Department [2004] EWCA Civ 49 states in paragraph 66 the four requirements as follows:
“First there must have been a mistake as to an existing fact, …Secondly the fact..must have been established in the sense that it was uncontentious and objectively verifiable.   Thirdly the appellant must not have been responsible for the mistake.   Fourthly the mistake must have played a material (not necessarily decisive) part in the tribunal’s reasoning.”
26.	The dispute between the claimant and defendant in this case is whether the mistake must have played a material part in the defendant’s planning committee’s decision.   
27.	The claimant says that the statement of the planning officer that there was an extant planning permission, which involved more severe traffic movement along the access road, was a matter which was material.   The claimant contends, and the defendant does not dispute, that in considering the grant of planning permission for development A, the decision maker must have regard to the ability of the applicant to implement an existing or deemed planning permission for an alternative development B, which may have broadly similar planning implications.   In short hand he must have regard to the applicant’s ability to implement a fall back planning permission.   This principle is now well established (see Brentwood Borough Council v Secretary of State for the Environment and Gray 1996 72 P&CR 61 at p.65.)   However, in considering this question of fall back, the prospects of it taking place must be real and not merely theoretical.   (See also Brentwood BC).
28.	It is common ground that there was, and could be, no fall back position in relation to the 1999 planning permission.   It had expired unimplemented.   The prospects of it taking place were neither real nor even theoretical.   
29.	In my judgment it is plain that the intervention of the planning officer at the meeting wrongly to inform the committee that there was an extant planning permission for a similar use, which was more severe in its potential impact than the one they were considering, did identify a fall back position which obliged the decision maker to have regard to it.   Furthermore, it is plain from the context of the discussion which had taken place in advance of that intervention, and the very limited discussion on other matters which took place after that intervention, that this intervention was highly material in the decision shortly after taken by the committee unanimously to grant the permission sought.   Whilst it is right to say that a number of councillors addressing the issue had indicated before the intervention that they were content to have the matter dealt with by appropriate conditions, they were by no means the majority of the members present and, in any event, their interventions came before Mr Mullaney had made his statement, which may have had the effect of persuading them otherwise.   In my judgment it is unrealistic for the defendant to suggest that the erroneous intervention of the officer at that stage of the debate was anything other that material and gives rise to an error of law which makes the subsequent decision susceptible to being quashed, subject to the exercise of my discretion.
Ground 2:The allegedly irrational approach of the author of the report to the treatment of the claimant’s previous objection incorporated into its current objection
30.	In my judgment the author of the report did act in a way which was irrational, in legal terms, in the way in which she treated the document annexed to the full statement of objections.   As I have indicated above, the full statement of objections identified not only that it was relying on the objections made in connection with the waste transfer station application, but identified the ways in which it accepted that those objections did not apply to the current application and highlighted the ways in which it did.   It did so by specifically referring to the passages in that earlier objection which concerned problems arising from dust raised by vehicles travelling past the Orange site on the access road as well as the increased risk of accidental damage.  Given that the focus of these objections was the movement of vehicles along the access road, in my judgment it was irrational for the planning officer to state that she did not attach any weight to the assessment of harm in relation to that aspect of the matter merely because the character of the proposed development was different to that of a waste transfer station.   That matter was factored into the full objections in that it was acknowledged that the character of the proposed development was different from that of a waste transfer station, but the factors being focussed on were the factors which were in common.
31.	In my judgment the claimant was entitled, as was the committee, to have those objections evaluated and explained by the officer making the report.   She has, in her evidence to this court at paragraphs 21 to 23, given consideration to the substance of that objection.   In those paragraphs she has given reasons why she stands by the judgment which she made in the report namely, that she did not anticipate an increase in dust/particles and vibration sufficient to warrant refusal.   I am unwilling to consider such evidence which, it may be said, amounts to little more than an ex post factor rationalisation.   On the other hand, I do not accept the claimant’s contention that, in the absence of consideration of the claimant’s substantive objections, there was insufficient information for the author of the report to form the view that she did.   There was quite a lot of information concerning the anticipated level of vehicle movements, and in particular heavy goods vehicle movements, along the access road, as well as the type of conditions which could be imposed in order to mitigate the raising of dust through such vehicle movement.   Accordingly, I do not accede to the second limb of the claimant’s argument: that, having discounted entirely the information contained in the claimant’s full objection, there was insufficient information upon which the author of the report could have made the recommendation which she did.   
32.	However, as I have already indicated that it was, in my judgment, irrational for her wholly to discount the full objections incorporating previous material relating to the impact of heavy goods vehicle movements along the access road. It follows that, subject to my discretion, the planning decisions of the committee on this occasion are liable to be quashed.
Discretion
33. The defendant argues that, even though on one or both of the two grounds argued the decision is susceptible to judicial review, I should exercise my discretion not to quash the decision.   In connection with the first ground this is a pure exercise of my discretion, as I have concluded that there was a material error of fact which amounts to an error of law.   In respect of the second ground, it forms part and parcel of the question whether the decision is susceptible to judicial review at all.   I have concluded that, by adopting the irrational approach which she did, the committee failed to have regard to a factor to which it ought to have had regard namely, the arguments contained in the document annexed to the claimant’s full objections.   I have been referred to the decision of the Court of Appeal in Bolton Metropolitan Borough Council v Secretary of State for the Environment and Greater Manchester Waste Disposal Authority [1990] 61 P&CR 343.   In particular, I am referred to the passage in the judgment of Lord Justice Glidewell as page 352 where Lord Justice Glidewell set out a number of principles as follows:
“…2.  The decision maker ought to take into account a matter which might cause him to reach a different conclusion to that which he would reach if he did not take it into account.   Such a matter is relevant to his decision making process.   By the verb “might” I mean that there is a real possibility that he would reach a different conclusion if he did take that consideration into account. 
3.  If a matter is trivial or of small importance in relation to the particular decision, then it follows that if it were taken into account there would be a real possibility that it would make no difference to the decision and thus it is not a matter which the decision maker ought to take into account…
5.  If the validity of the decision is challenged on the ground that the decision maker failed to take into account a matter in the second category (where the obligation to take into account is to be implied from the nature of the decision and the matter in question) it is for the judge to decide whether it was a matter which the decision maker should have taken into account.
6.  If the judge concludes that the matter was “fundamental to the decision” or that it is clear that there is a real possibility that the consideration of the matter would have made a difference to the decision, he is thus enabled to hold that the decision was not validly made.   But if the judge is uncertain whether the matter would have had this effect or was of such importance in the decision making process, then he does not have before him the material necessary for him to conclude that the decision was invalid.
7.  Even if the judge has concluded that he could hold that the decision is invalid, in exceptional circumstances he is entitled nevertheless, in the exercise of his discretion, not to grant any relief.”
33.	Mr Goatley argues that there is no real possibility that the committee would have taken a different decision had either or both of the errors referred to not occurred.   He points out that section 38(6) of the Planning and Compulsory Purchase Act 2004 provides that if regard is to be had to the development plan for the purpose of any determination to be made under the planning acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.   He also points out that section 70 of the Town and Country Planning Act 2000 provides in sub-section 2 that in dealing with such an application the authority shall have regard to the provisions of the development plan so far as is material to the application and to any other material considerations.   
34.	He says, and I accept, that the planning authority was obliged to have regard to the fact that the site was allocated on the UDP as good urban land for industrial development.   He also submits, which I accept, that the determination must be made in accordance with the plan unless material considerations indicate otherwise.   He says that in planning terms nothing had changed since 1999.   I also accept that.   He also says that there is nothing in the PPG 8 which in any way subverts the zoning provisions of the UDP.   Nor is there anything in the enhanced level of telecommunications activity or the statutory obligations placed upon the claimant under the 2003 and 2004 legislation which gives them priority or primacy in planning terms.   I accept those arguments as well, indeed, the claimant makes it clear that it does not seek so to argue.   
35.	He also argues, which I accept, that the planning history, even where previous permissions expired unimplemented, may be a material consideration and he says that the report properly identified the impact on telecommunications as potentially being a material consideration.   
36.	He therefore says that, notwithstanding the discussion at the committee meeting and notwithstanding the contents of the full objection and the 2004 document annexed thereto,  had the committee been properly advised as to the expired status of the 1999 permission and been fully advised of the contents of the 2004 document there is no real possibility that they would have done other than granted permission subject to the same onerous conditions as they did.   
37.	In my judgment, whilst those arguments are attractive, they are not sufficient to persuade me either to exercise my discretion in relation to ground 1 nor to be satisfied that there was no unlawfulness in relation to ground 2.   In my judgment it is plain from the way in which the members were concerned about the issue of dust which had been raised, and the details of the 2004 submission relating to dust raised on the access road, that there is a real possibility that they would either have refused the permission, or have deferred consideration of it until further information was available.   This was, as Miss Patry-Hoskins submits, the first occasion that the issue of dust from the access road impacting on the switch site had been before the planning committee as a matter of substance.   It had been raised in 1998, but the objection had been withdrawn as a result of discussions between the then site owner and the claimant.   It was not before them at all in 1999, because Mr Feeney took the view that there was no realistic possibility of the planning permission being implemented, in which judgment he was proved right.   In 2004, the very full submissions never came before the council because the application was withdrawn, perhaps as a result of the recognised strength of those objections.   It was an issue which engaged the councillors attention.   It was an issue upon which the 2004 document had a great deal, of direct relevance, to contribute.   It is by no means a fanciful or theoretical possibility that, in that context, the committee, had it been advised properly, would have either refused permission or deferred their decision.
38.	Accordingly, there is no good reason for me to exercise my discretion not to quash under ground 1. Under ground 2, I conclude that the irrationality which I have identified has the consequence that the planning decisions should be quashed.   
39.	I have been informed that, pending this application for judicial review, the permissions given have not been implemented.   Furthermore, a fresh application in respect of this change of use has been submitted and, on this occasion, both the applicant for permission and the claimant have engaged experts to address the question of dust on the access road.   Accordingly, the quashing of these decisions does not mean that planning permission will not ultimately be granted, nor does it mean that the parties will have to go back to square one, as they are already well advanced in proceeding with the subsequent application. Thus there is no argument in terms of inconvenience to refuse relief.
40.	For the reasons which I have given, therefore, I grant judicial review and quash the two planning decisions taken in respect of the Smalldene site by the defendant’s planning committee on 8 December 2005.