What freedom of action does a local planning authority (“LPA”) have in circumstances where a third party has applied for judicial review of its decision to grant planning permission and, pending determination of its claim, the developer submits a second application for planning permission in virtually identical terms?
That was very much the situation of the LPA in R (on the application of Forge Field Society) v Sevenoaks District Council [2014] EWHC 1922 (Admin); [2014] PLSCS 182. There the LPA had granted planning permission to a housing association for six affordable dwellings. A local amenity group sought judicial review, and was granted permission to proceed on a number of grounds. In the meantime, the housing submitted a second planning application containing identical development proposals but supported by a revised design and access statement. It did so because of its concern that the proceedings would delay the project and might prejudice its funding.
The LPA once more granted planning permission, and the local amenity group applied for judicial review also of its decision to do so. The court ordered both claims to be heard together. At the hearing, the LPA abandoned its defence to the first claim but continued to argue that the second planning permission was lawfully granted. In relation to the LPA’s freedom of action in these circumstances, the local amenity group’s principal contention was that the grant of the second planning permission must be regarded as tainted by the appearance or risk of bias. There was a real risk that the LPA, in determining the second planning application, would wish to support the decision it had taken on the first one in order to try and avoid the consequences of the forthcoming judicial review proceedings and any costs implications.
The judge rejected this argument. The courts will not readily find an appearance of bias in an administrative decision. The test was whether a fair-minded and informed observer, having considered the relevant facts, would think that there was a real possibility of bias. That was not the case here.
A claim for judicial review does not suspend the normal business of development control. Such a claim is not a means of defeating the proposal itself. It is a means of overturning an unlawful decision. The court’s jurisdiction is confined to a review, on public law principles, of the process by which the decision was made. Success for the claimant does not come in the form of a different result on the planning merits, but in the undoing of a legally bad decision and a legally sound one being taken instead.
John Martin
