Judge rules council broke law over Ben Burgess move decision

A computer-generated image of the proposed Ben Burgess headquarters at Swainsthorpe. Pic: Ben Burges

A computer-generated image of the proposed Ben Burgess headquarters at Swainsthorpe. Pic: Ben Burgess. - Credit: Ben Burgess

Campaigners who took Norfolk County Council to the High Court over it not objecting to a move by farm machinery company Ben Burgess have won.

In what campaigners in Swainsthorpe hailed as a "David versus Goliath" victory, a judge ruled County Hall had acted unlawfully over the issue.

Ben Burgess wants to move from Norwich to a new two-storey headquarters by the A140 in Swainsthorpe - with South Norfolk Council due to decide whether or not to grant permission.

Highways officers at County Hall initially said they would recommend the council should object, because the company's sought-after new junction on the A140 to serve the building would be against the council's policies.

But, at a meeting of the Conservative-controlled cabinet in September, councillors agreed not to object, saying the economic impact outweighed the concerns of officers.

Swainsthorpe Parish Council and the Saving Swainsthorpe group sought a judicial review hearing before a High Court judge, which was held last month.

And, giving her judgement on Friday, Mrs Justice Lang said it had been unlawful for the cabinet to respond on economic grounds.

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She said: "The proper response required of Norfolk County Council in this context was an expert response in its capacity as highways authority, not its wider views on the benefits of the development to the local economy.

"If the county council wished to make representations to South Norfolk District Council about the merits of this application for planning permission, it could have done so otherwise than in its capacity as highways authority."

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Mrs Justice Lang criticised the letter County Hall sent to South Norfolk Council.

She said: "The way in which the response letter was drafted gave the impression that the highway authority did not object to the access proposals because a roundabout was “considered safe and correct for this location”.

"However, although the roundabout proposal was technically acceptable, there were significant objections from officers to a new junction because the A140 is a route of strategic importance, defined as a corridor of movement and part of the Major Road Network.

"The letter did not refer at all to the advice from officers that the access road was contrary to policy."

She said it made no mention of the balancing exercise the cabinet had carried out to conclude the economic benefits of the development outweighed the highways objections, leaving those who read the enclosed cabinet minutes to attempt to work that out.

She said: "But even reading the letter and the minutes together as a whole, I consider that the response was inadequately reasoned and incomplete.

"It did not provide South Norfolk District Council with the information which it required, and which could be conscientiously taken into account in deciding whether to grant planning permission.

"In conclusion, Norfolk County Council improperly took into account the economic benefits of the proposed development when responding to the consultation by South Norfolk Council, and submitted an incomplete and inadequately reasoned consultation response."

Norfolk County Council at County Hall in Norwich

The controlling Conservative cabinet at County Hall had decided not to object to the move, saying economic grounds outweighed highways concerns. - Credit: Archant

Robin Parkinson, from the Saving Swainsthorpe Group, said: "It's both a vindication and a total vindication. This was a classic David and Goliath battle, where a little parish council risked losing our costs because a point needed to be made.

"To have such a comprehensive result supports that and emphasises that you cannot bend the rules.

"It was the cabinet which made this decision and they are at the very top of the pyramid.

"I think there needs to be a public inquiry into the workings of the cabinet.

"You do wonder how often they have made decisions which have gone unchallenged."

The final decision on granting planning permission still rests with South Norfolk Council and Mr Parkinson said campaigners would "continue to keep the pressure up".

Tom McCabe, head of paid service at Norfolk County Council. Picture by SIMON FINLAY.

Tom McCabe, head of paid service at Norfolk County Council. - Credit: Archant Norfolk

Tom McCabe, Norfolk County Council’s head of paid service, said the council accepted the decision.

He said: "The court agreed with the county council that it was appropriate to refer this matter to cabinet for consideration.

"The county council undertook this approach as there were significant economic considerations that cabinet wanted to balance alongside the highways issues.

"However we acknowledge that as a statutory consultee arising out of its role as the highway authority, it should have dealt with such considerations in separate ways.

“In light of the court's judgement, we will respond to the consultation, via delegated officer powers, on the highways element and further will submit a letter to the planning authority, distinct from being the highway authority, detailing our views on the economic issues.

"These will then be a matter for the local planning authority to consider.”

It is the second judicial review Norfolk County Council has lost this year.

In January, a judge ruled the council had acted unlawfully over changes to care costs for disabled people and had discriminated against them in an unforeseen and unintended way.

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