Planning permission – Community hall — Legitimate expectation – Appellant seeking permission to apply for judicial review of decision to grant planning permission for mixed use development – Whether appellant having legitimate expectation of improved facilities on basis of earlier representation by respondent authority – Appeal dismissed
The former site of a district centre providing community services which included a stand-alone community hall with 413 square metres of floorspace, was marked for redevelopment. The respondent council prepared a project brief in April 2000 which provided that the developer would be expected to carry out improvements to or create new infrastructure that might include financing and building a new community hall on site if the existing hall site was to be redeveloped. In 2007, the respondents adopted a Unitary Development Plan (UDP) which, in policy 7P, required the site to be used as a community centre and health centre.
The interested party made two unsuccessful applications for planning permission. Permission was eventually granted in 2010 for a mixed use development including a health centre and a community centre with a floor space of 124 square metres. The community centre was not free-standing but contained within the health centre building.
The appellant applied for permission to seek judicial review of the decision to grant planning permission on the basis that it lacked appropriate provision for a community centre. The High Court refused permission on the basis that the respondents’ planning committee had satisfied itself that the proposal before it contained a community centre that was good enough for the purposes for which it was to be provided.
The appellant appealed, contending that there was a legitimate expectation that better and larger facilities would be provided. He argued that the respondents had failed to give effect to an understanding with community members that there would be a free-standing community hall; failed to take account of the 2002 project brief as a material consideration and failed to implement their own policy 7P of the UDP.
Held: The appeal was dismissed.
(1) A rigorous standard was to be applied when a substantive legitimate expectation was claimed on the basis of a representation or promise by a public authority, bearing in mind the duty of public authorities to exercise powers in the public interest. Only when to fail to give effect to a promise would be so unfair as to amount to an abuse of power, would it override other considerations. Changes of policy, fuelled by broad conceptions of public interest, might more readily be accepted as taking precedence over the interests of groups which enjoyed expectations generated by an earlier policy. An earlier approach of the local planning authority to an issue, even if amounting to a planning policy, could not have primacy over the statutory duty of a council to assess the current situation: R v Secretary of State for Education and Employment, ex parte Begbie [2000] 1 WLR 115; R (on the application of Barker) v Waverley Borough Council [2002] 1 P & CR 6; and R (on the application of Murphy) v Independent Assessor [2008] EWCA Civ 755 applied.
(2) In determining the application for planning permission, the respondents were required to perform their statutory duty under section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004. Policy 7P of the 2007 UDP required a community centre as a part of the proposed development but did not include a specific requirement as to size. In deciding what provision to make, the respondents were required to assess current needs which was a material consideration. With conspicuous care and thoroughness, the planning officer’s report had assessed those needs, paying regard to other community facilities in the area. The report drew attention to the community centre proposed being significantly reduced in size from that in earlier planning applications and a consultation was conducted. The representations made were adequately summarised and responses stated in the officer’s report to committee.
Even assuming that there was an intention in 2002, made known to community representatives, that a large and separate community centre was to be included in the development, that fell well below a substantive legitimate expectation. There was a delay of many years before the relevant planning application was considered and the respondents were obliged to have regard to the current development plan which required an assessment of current needs. That was the public duty of the respondents to the community as a whole and it would have been wrong for them to have been deflected from performing that duty because a different assessment of community needs had been made and communicated, before the UDP was adopted, in 2002. The 2002 assessment and project were not material considerations in the statutory sense to an assessment made in 2010.
The planning committee had been made aware that a larger community centre had been proposed in earlier applications. The respondents could not be required to carry forward that earlier assessment, even if accompanied by an understanding conveyed to representatives of the community in 2002, into a material consideration in 2010. Even if such an understanding was conveyed, it could not fetter the discretion of the respondents in the exercise of their statutory duty in present circumstances. There were competing needs for space in the proposed development and other interests, in addition to the need for a community centre, needed to be considered. It had not been an abuse of power to assess current needs rather than apply an assessment of needs made many years before.
Ian Dove QC and Jamie Burton (instructed by Richard Buxton, of Cambridge) appeared for the appellant; Daniel Kolinsky (instructed by Southwark London Borough Council) appeared for respondents; Neil King QC and Robert Walton (instructed by Richard Max & Co) appeared for the interested party.
Eileen O’Grady, barrister
