Planning application — Procedure — Council departing from code of conduct for planning process — Planning permission refused — Whether judicial review appropriate remedy where statutory appeal on merits available to claimant — Claim dismissed
The claimant applied to the defendant council for planning permission to construct a replacement building to be used in connection with his fruit-packing business. The council’s planning committee held two successive meetings at which they passed resolutions in favour of the development, subject to conditions being imposed. The claimant was permitted to address the committee for three minutes on each occasion, pursuant to the council’s code of conduct under the Local Government Act 2000. However, when the application came before the committee on a subsequent occasion, the claimant was informed that he would not be allowed to speak. He was told that a decision had been reached in principle to grant permission, and that conditions only would be considered at the forthcoming meeting. In the event, permission was refused, and the claimant appealed to the Secretary of State. Before the appeal had been heard, the claimant brought judicial review proceedings challenging the council’s decision on the ground of procedural unfairness.
Held: The claim was dismissed.
Although a decision to refuse planning permission, or to impose conditions, was, in principle, susceptible to challenge by way of judicial review, it would be an appropriate remedy only in the most exceptional circumstances, given the availability of the very comprehensive right of appeal to the Secretary of State: R v Hillingdon London Borough Council, ex parte Royco Homes Ltd [1974] QB 720 considered. The real issue in the present case was not whether the committee’s decision-making process contained procedural irregularities, but whether planning permission should have been granted for the proposed development: R v Leeds City Council, ex parte Hendry (1994) 158 LG Rev 621 applied. The claimant would have an opportunity to argue, before an inspector, that planning permission should be granted. The planning committee had not only been entitled but also bound to reconsider the application in principle at the later meeting. The mere fact that the code had been breached did not lead to the inevitable conclusion that judicial review was an appropriate remedy, particularly where another right of appeal was capable of dealing with the underlying issue of the planning merits.
Robert Fookes (instructed by Brachers, of Maidstone) appeared for the claimant; Richard Barraclough QC (instructed by the solicitor to Maidstone Borough Council) appeared for the defendants.
Sally Dobson, barrister
