Development – Aggrieved person – Called-in application – First respondent granting planning permission following public inquiry – Appellant member of objecting organisation – Appellant not participating in inquiry – Appellant claiming first respondent erring in decision to grant permission – Whether appellant aggrieved person with standing to challenge decision of first respondent – Appeal dismissed
The second respondent developer applied for planning permission to construct a 43-storey tower comprising a community sports centre and swimming pool, retail, leisure and commercial space, 329 residential units and underground car parking. Among the objectors to the scheme was a community group of which the appellant, a local resident who lived 260m from the proposed development, was a member.
The first respondent secretary of state called in the application and ordered a public inquiry. The inspector recommended that planning permission should be refused. However, the first respondent disagreed and granted planning permission subject to conditions.
The High Court dismissed applications under section 288 of the Town and Country Planning Act 1990. It concluded that the first respondent’s approach to the relevant statutory and policy provisions had been correct; her conclusion that there was insufficient evidence to justify a refusal of planning permission was a judgment that was open to her and she had taken no immaterial considerations into account in reaching her decision. Furthermore, the appellant had not played a sufficiently active role in the planning process so as to be described as “aggrieved” within section 288, notwithstanding the genuineness of his interest in the outcome of the decision-making process: see Historic Buildings and Monuments Commission for England (English Heritage) v Secretary of State for Communities and Local Government [2009] EWHC 2287 (Admin); [2009] PLSCS 262.
The appellant appealed, contending that the reliance placed by the first respondent’s inspector on the funding of the proposed sports centre complex contained a material error of fact in that she had believed that it would be provided by the second respondent at no public cost. Further, the judge had erred in finding that he was not a person “aggrieved” within section 288.
Held: The appeal was dismissed.
When using the expression “public cost”, there was no doubt that the inspector was referring to costs directly on central or local government. Planning procedures had been followed on the basis that so-called “soft funding” relied on by the second respondent, including grants from public agencies, charities and private sector bodies, was distinct and separate from “public cost”. There was no reason to doubt that the first respondent understood the sense in which the inspector had used those terms.
The inspector in his report, and the first respondent in her decision letter, had said that the project would not be a burden on national or local taxpayers. The expression “at no public cost” had been used accurately by the first respondent; there had been no misunderstanding and the cost factor had been sufficiently defined and expressed.
In the light of the court’s finding on the merits of the complaint, it was not necessary to rule on the question of the appellant’s standing. However, had it been necessary to do so, the court did not consider that his participation in the planning process was sufficient to acquire standing. He was not an objector to the proposal in any formal sense and did not make representations, either oral or written, at the public inquiry. Mere attendance at parts of the hearing and membership of the objectors’ group, which had not brought proceedings in the court, were insufficient: Eco-Energy (GB) Ltd v First Secretary of State [2004] EWCA Civ 1566; [2005] 2 PLR 33 and Lardner v Renfrewshire District Council [1997] SLT 1027 applied.
Moreover, the absence of representations before or at the inquiry regarding the loss of amenity at the appellant’s property, either personally or by the objectors’ group, deprived the second respondent and the local planning authority of the opportunity to test the extent of the alleged loss and to call evidence in response. Therefore, the inspector, as the fact-finding tribunal, had not been in a position to assess the extent of the loss and whether it amounted to a sufficient interest. The Court of Appeal could not make good that deficiency: Morbaine Ltd v First Secretary of State [2004] EWHC 1708 (Admin); [2005] JPL 377 considered.
Richard Harwood (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the appellant; James Maurici (instructed by the Treasury Solicitor) appeared for the first respondent; David Forsdick (instructed by SJ Berwin LLP) appeared for the second respondent.
Eileen O’Grady, barrister
