Town and country planning – Development consent order – Wind farm – Interested parties applying for development consent orders for two offshore windfarm projects – Agreements reached with landowners facing compulsory purchase – Respondent secretary of state granting consent – High Court dismissing application for judicial review – Appellant appealing – Whether use of non-objection clauses in agreements interfering with administration of justice – Appeal dismissed
On the application of the interested parties, the respondent secretary of state made two development consent orders under section 114 of the Planning Act 2008 for the construction of two offshore windfarms off the Suffolk coast and associated onshore development.
Among other things, the development consent orders authorised the compulsory purchase of land needed for onshore works, potentially from 55 different landowners.
The appellant was a special purpose vehicle incorporated by a local residents’ group to protect the coast and countryside affected by the scheme.
It applied for judicial review contending that the respondent had acted unlawfully in dealing with a complaint by the appellant, that the interested parties had “stifled” or “neutralised” the ability of landowners facing possible compulsory purchase to present objections to and information about the scheme.
The appellant argued that the statutory examination process was unfairly distorted which impeded the carrying out of a proper enquiry as to whether the proposed development was in the public interest.
The complaint centred around non-objection clauses and confidentiality clauses in the heads of terms and option agreements negotiated between the interested parties and most of the private landowners whose land was potentially subject to compulsory purchase.
Those provisions were unlawful because they precluded, or tended to dissuade, the landowners from objecting to the scheme.
The High Court dismissed the application: [2023] EWHC 1796 (Admin). The appellant appealed.
Held: The appeal was dismissed.
(1) There was no valid objection on grounds of public policy to a covenant whereby a party to a commercial transaction involving the disposition of land undertook to support, and to refrain from opposing, planning applications by the other party for the development of the land.
Any court would prevent and, if necessary, punish conduct interfering with the administration of justice.
The question was whether the conduct complained of, had, or would interfere with the administration of justice.
It was necessary to take a broad view of the public interest, and where necessary seek to achieve a balance between countervailing public policy considerations.
Where a commercial agreement relating to land had been entered into between parties at arm’s length and one party agreed in return for a very substantial payment to support the other party’s applications for planning permission, there was no rule of public policy which rendered such an agreement illegal or unenforceable: Fulham Football Club v Cabra Estates [1993] 1 PLR 29 considered.
(2) It was also common ground that no one could be required to give false evidence to a planning inspector or examiner.
The question was whether a party who had sold, or was proposing to sell, an interest in land might agree contractual obligations not to object to the grant of planning permission.
It had been the practice for many years to use non-objection clauses in cases where an applicant for planning permission might use compulsory powers to acquire land or an interest in land.
However, just because the use of non-objection clauses had become standard practice, it did not mean that their use was lawful.
The use of non-objection clauses when a party had obtained an interest in land, or an interest in land conditional on the grant of planning permission, was permissible for two main reasons.
First, an applicant who owned land and sought planning permission for a relevant use of that land was unlikely to object to that application. That fact had not of itself been considered to undermine the integrity of the process for the granting of planning permission.
Secondly, the planning process was inquisitorial in nature which meant that it was for the decision-maker to ensure that there was sufficient information to enable an informed and lawful decision to be made on the application for planning permission.
Whether the effect of a non-objection clause had in fact meant that there was insufficient information to enable a planning decision to be made always had to be a fact-specific inquiry.
(3) In addition to the inquisitorial nature of the process leading to the grant of development consent for nationally significant infrastructure projects, the secretary of state had to have regard to the matters set out in section 104(2) of the 2008 Act.
Furthermore, because the proposals involved “EIA development” for the purposes of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017, the examining panel also carried out an environmental impact assessment in respect of each development.
The inquisitorial nature of the process, and the relevant statutory provisions, meant that in general, the non-objection and confidentiality clauses should not prevent the decision-maker from becoming aware of all the relevant planning and environmental considerations. It would always depend on the particular facts.
In this case, the heads of terms, which contained the non-objection and confidentiality clauses, were not contractually binding.
Only when the option agreements were exercised did the non-objection clause became legally binding.
The phrase “subject to planning & contract” in the heads of terms was not to be ignored. The landowners had the benefit of legal advice, and it could reasonably be assumed that their legal advisers would have made it clear that the heads of terms were not legally binding.
No option agreements had been signed before the completion of the examination by the planning inspectors, and only two option agreements were completed before the respondent issued the decision letters.
(4) The fact that 39 out of 55 landowners who had signed the heads of terms objected to the scheme showed that landowners were not, in practice, “stifled” or “neutralised” in objecting to the scheme.
That was so, notwithstanding the fact that only two of those landowners gave evidence to the examining panel. In those circumstances there was no conduct interfering with the administration of justice.
The court was right to dismiss the claim for judicial review.
The use of non-objection clauses in the heads of terms and option agreements was legitimate in this particular scheme.
Tim Buley KC (instructed by Leigh Day) appeared for the appellant; Mark Westmoreland Smith KC and Jonathan Welch (instructed by Government Legal Department) appeared for the respondent; Hereward Phillpot KC and Hugh Flanagan (instructed by Shepherd and Wedderburn LLP) appeared for the interested parties.
Eileen O’Grady, barrister
