In R (on the application of Midcounties Co-operative Ltd) v Forest of Dean District Council [2015] EWHC 1251 (Admin); [2015] PLSCS 138, the local planning authority (“LPA”) had granted planning permission in March 2012 to the interested party for an out-of-town supermarket. The claimant, which owned and operated a town centre supermarket, sought judicial review of its decision to do so.
In July 2013, Stewart J quashed the LPA’s decision, and remitted it to the LPA for determination. He concluded that the LPA’s determination of the planning application was fundamentally flawed as a matter of law. The overall effect of the case officers’ report had been to mislead the LPA’s planning committee significantly.
In January 2014, having redetermined the planning application, the LPA once again granted planning permission to the interested party. In September 2014, Hickinbottom J – on the claimant’s further application – once more quashed the LPA’s decision, holding that the errors previously identified in the case officers’ first report were, in substance, simply repeated in their second report. Accordingly, once more the LPA’s planning committee had been misled.
In the meantime, the LPA had in July 2014 granted planning permission once more to the interested party on the basis of an earlier duplicate planning application. The claimant sought judicial review of that decision also, and this month Singh J quashed the decision on similar grounds to those previously upheld.
In a postscript to his judgment, the judge pointed out that the LPA had informed the court by letter that it did not concede the claim, but since it could not afford – for financial reasons – to take an active part in the proceedings, it simply supported the interested party in its resistance to the challenge. He took the view that such a course of action was likely to lead to tension with certain fundamental aspects of the way in which judicial review proceedings are conducted.
This was because case law made it clear that a public authority defendant in such proceedings has a duty of candour and cooperation, so as to assist the court in understanding its decision-making process and to deal with the issues fairly. This was based on the concept that it acts in the public interest, and not merely to protect a private commercial interest. This might as a minimum mean filing a witness statement to assist the court, filing an acknowledgment of service with summary grounds of resistance and arranging attendance by a representative to answer judicial questions if invited to do so.
John Martin
