Town and country planning – Planning appeal – Judicial review – Defendant secretary of state dismissing appeal against refusal of planning consent – Claimant local authority having concerns about inspector’s interpretation of national planning policy – Claimant not being “person aggrieved” entitled to bring statutory claim – Claimant applying for judicial review – Whether court should exercise discretion to address academic matter – Claim dismissed
The first interested party applied for outline planning permission for the erection of 40 dwellings. That application was refused by the claimant local authority. The first interested party appealed under section 78 of the Town and Country Planning Act 1990. That appeal was heard before an inspector at a public inquiry. The defendant secretary of state recovered the appeal for his own determination. One of the issues was whether the claimant could demonstrate a five-year housing land supply within para 73 of the National Planning Policy Framework (NPPF).
The inspector rejected the claimant’s contention that an oversupply of housing land since the start of the development plan period should be counted in calculating the five-year housing land supply. It did not consider that an oversupply from previous years could be “banked” to reduce the housing target in future years. Having found that the claimant was currently unable to demonstrate a five-year housing land supply, the inspector concluded that para 11 of the NPPF was engaged and the presumption in favour of sustainable development applied. However, the adverse impacts of the proposal significantly and demonstrably outweighed the benefits, when assessed against the policies in the NPPF taken as a whole. A decision other than in accordance with the development plan was not justified and the proposal would not represent sustainable development. Therefore, the appeal should be dismissed.
The claimant was successful in the appeal and planning permission was refused. However, the claimant remained concerned about the decision’s treatment of oversupply of housing land in the calculation of the five-year housing land supply. Since it was not a person aggrieved by the substance of the decision, the claimant could not apply under section 288 of the 1990 Act. Therefore, it applied by way of judicial review to challenge the reasoning of the defendant in so far as it related to the five-year housing land supply. Permission to apply for judicial review was granted. The defendant considered that the court should not deal with the point because it was now academic.
Held: The claim was dismissed.
(1) The court had jurisdiction to consider and grant relief in a claim which was or had become academic. However, the discretion to hear disputes, even in the area of public law, had to be exercised with caution and appeals which were academic between the parties should not be heard unless there was a good reason in the public interest for doing so. It was a particularly important feature of the evaluation in this case to note the particular context and nature of planning appeal decisions which did not amount to binding precedents. It was a common feature of the appeal process that issues such as the interpretation of planning policy were resolved by, and reviewed in subsequent appeals by, planning inspectors. Whether that was described as an alternative remedy or an inherent feature of the decision-taking process in planning cases, the court was not the only means of resolving a dispute as to the meaning of planning policy.
(2) Whilst the court might have a final say in relation to the interpretation of planning policy, in the first instance and in many cases the interpretation of policy would be resolved by specialist planning inspectors who were accustomed to interpreting planning policy as a regular part of their role in reaching appeal decisions. The claimant’s dissatisfaction with the defendant or his inspector’s interpretation of planning policy was a matter which could be properly ventilated and re-examined in a subsequent appeal if there was good reason to do so; if the interpretation was persisted in and a decision adverse to a claimant arose then the claimant had the right to ask the court to intervene. Therefore, even if a dispute about the interpretation of national planning policy might have a reach or coverage to engage a significant number of other cases, that would not be sufficient to justify the court’s intervention where the structure of the appeal decision-taking process was such that no conclusion as to the interpretation of planning policy was a binding precedent and, when the interpretation complained about actually had a decisive impact on the appeal decision, the appropriate procedure under section 288 of the 1990 Act could be engaged.
(3) There were difficulties with the court engaging in what were effectively section 288 challenges brought by a party who was not a “person aggrieved” in terms of relief and procedure. The court plainly had to consider whether or not the strictures in relation to the refusal of the grant of relief contained in section 31(2A) of the Senior Courts Act 1981 Act were engaged. In a case such as this, the conduct complained of was the reasoning in relation to a point which was not ultimately decisive, and it was difficult to see how the outcome for the applicant would have been at all different. The clear intention of section 31(2A) was to require the court to withhold relief when it was highly likely that the decision would not have been substantially different if the illegality had not occurred. It followed, since the reasoning which was the subject matter of the claimant’s complaint was not decisive, that in accordance with section 31(2B) relief should be refused unless there were reasons of exceptional public interest making it appropriate not to do so. In all the circumstances, the present case did not meet any test of exceptional public interest.
In the particular circumstances of a decision in relation to a section 78 planning appeal, where the successful party wished to bring a judicial review in relation to an issue of planning policy interpretation with which it disagreed, having lost that particular battle but won the war in relation to the outcome of the appeal, the principles in relation to dealing with such an academic judicial review were not engaged. In this case it was not appropriate for the court to exercise its jurisdiction to adjudicate upon an academic dispute in a judicial review claim.
James Pereira QC and Horatio Waller (instructed by Tewkesbury Borough Council) appeared for the claimant; Tim Buley QC (instructed by the Treasury Solicitor) appeared for the defendant; Anthony Crean QC and John Hunter (instructed by Shoosmiths LLP) appeared for the second interested party; the first interested party did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read a transcript of Tewkesbury Council v Secretary of State for Housing, Communities and Local Govt
