🧾 The context:
The Beechlands Road application was affected by complex and exceptional planning circumstances, including:
- Application of “tilted balance” under NPPF Paragraph 11(d),
- The site being located outside the designated Settlement Policy Boundary (SPB),
- Conflict with the Local Plan and rural development restrictions.
Yet EHDC’s planning portal provided no tailored explanation of these issues at the point of public comment.
No section explained:
- The meaning or implications of “tilted balance”,
- That the site lay outside policy-compliant development areas,
- That the proposal was being assessed exceptionally due to the council’s housing land supply shortfall,
- What qualifies as material vs. non-material considerations.
Residents were therefore asked to provide feedback without knowing the rules by which their comments would be judged.
🧩 Why this is a potential ground for Judicial Review:
⚖️ 1. Procedural Unfairness – Absence of Meaningful Public Guidance
EHDC had a legal and policy duty to enable effective and informed public participation. Yet during the Beechlands Road application, it failed to provide basic explanations of the planning framework — including the use of NPPF Paragraph 11(d) (tilted balance), conflict with the Local Plan, and the site’s location outside the Settlement Policy Boundary (SPB).
Residents were expected to comment on an exceptional planning case without being told how their comments would be assessed, or which objections would be valid. This failure disadvantaged the public, especially those unfamiliar with planning law or policy.
⚖️ 2. Disproportionate Impact on Digitally Excluded and Vulnerable Residents
The EHDC planning portal:
- Used a plain text comment box with no formatting or structure tools,
- Provided no guidance on relevant planning criteria,
- Made it difficult for residents to attach evidence or submit complex objections.
These design and communication flaws disproportionately affected older residents, digitally excluded individuals, and anyone without prior planning knowledge — groups who are often the most directly impacted by development.
⚖️ 3. Failure to Facilitate Transparent, Accessible Engagement
EHDC’s approach did not align with Paragraph 132 of the National Planning Policy Framework (NPPF), which encourages proactive, early, and effective engagement. In a case involving discretionary judgment under tilted balance, the absence of explanatory content, coupled with a lack of access support, resulted in an inaccessible and inequitable process.
This is not merely a missed opportunity — it represents a procedural failure in ensuring democratic participation.
⚖️ 4. Incomplete or Misleading Planning Portal Guidance
EHDC’s “What can I comment on?” section, as shown in a public response dated June 2024, listed only a narrow range of generic concerns — such as impact on daylight, parking, or noise — while failing to explain the full categories of material planning considerations used in planning law and guidance.
These include:
- Design and Appearance
- Flood Risk
- Environmental Impact
- Heritage and Conservation
- Infrastructure and Services
- Land Use and Spatial Strategy
- Local and National Planning Policy
- Public Opinion
- Residential Amenity
- Sustainability
- Traffic and Access
- Economic Benefits
- Air and Water Quality
📌 Crucially, EHDC also failed to explain how these categories applied specifically to the Beechlands Road application — for example:
| Category | Relevant Issue for Beechlands Road |
|---|---|
| Local/National Policy | Conflict with EHDC Local Plan policies |
| Land Use / Spatial Strategy | Site is outside the Settlement Policy Boundary (SPB) |
| Sustainability | Application assessed under NPPF 11(d) tilted balance |
| Infrastructure and Services | Known pressure on schools, transport, healthcare |
| Environmental Impact | Lack of EIA despite cumulative development in the area |
By omitting this context and failing to show how objections could be framed within these valid categories, the portal effectively misinformed by omission. Residents were left unaware that these types of objections were not only allowed but critical to the legal balancing exercise under NPPF.
This omission had a chilling effect on public participation, particularly for those unfamiliar with planning terminology — thereby undermining procedural fairness and the integrity of the consultation.
✅ Supporting Evidence:
A resident email (dated 12 June 2024, shown above) highlights the lack of portal accessibility, and formally recommends improvements — including:
- The ability to submit attachments (not clearly advertised),
- A WYSIWYG text editor to help residents organise objections,
- Review and update of the “What can I comment on?” guidance, which appeared misleadingly narrow.
This email demonstrates that residents identified accessibility issues in real time — yet there is no evidence EHDC acted to correct them.
🔍 Summary:
If a planning authority:
- Invites public comment on a non-compliant or exceptional application,
- Fails to explain the key planning policies and legal tests in play (e.g. tilted balance, Local Plan conflict),
- Provides no tools or accessible structure to help residents submit meaningful objections (e.g. formatting, upload options),
- And publishes guidance that omits or downplays key categories of material planning considerations relevant to the case…
👉 Then the consultation process may be:
- Procedurally unfair,
- Misleading by omission, and
- Legally challengeable under Judicial Review for:
- Procedural Impropriety, and
- Failure to meaningfully consult the public, as required by law.
This is especially relevant in tilted balance cases, where the decision hinges on whether the adverse impacts significantly and demonstrably outweigh the benefits. If the public is misled or discouraged from raising those impacts — through omission, confusion, or lack of guidance — the legal integrity of the balancing exercise is compromised.
✅ Supporting Law and Policy:
📘 National Planning Policy Framework (NPPF) – Paragraph 132
“Applications that can demonstrate early, proactive and effective engagement with the community should be looked on more favourably.”
➤ EHDC failed to support effective engagement by omitting core planning context and material consideration categories from its portal.
📘 NPPF – Paragraph 11(d) (Tilted Balance)
Requires that permission should be granted unless the adverse impacts of doing so significantly and demonstrably outweigh the benefits.
➤ Public input is vital in identifying these adverse impacts, and residents must be properly informed to participate meaningfully.
📘 Planning Practice Guidance (PPG) – Paragraph 19 (Decision-making section)
“Planning decisions must be made in accordance with the development plan unless material considerations indicate otherwise.”
➤ Without clear explanation of material considerations, public objections may be improperly framed or disregarded.
⚖️ R (Moseley) v Haringey LBC [2014] UKSC 56
The Supreme Court confirmed that consultation must be “fair and meaningful,” and include information about “arguments for and against” a proposal.
➤ A guidance list that omits key legal tests and policy conflicts risks misinforming by omission.
⚖️ Gunning Principles (R v Brent LBC, ex parte Gunning [1985])
Consultation must take place when proposals are still at a formative stage, be based on sufficient information, allow for adequate time, and responses must be conscientiously taken into account.
➤ EHDC’s portal failed to provide sufficient information, undermining the Gunning standard of fairness.