Planning permission – Planning committee – Representations – Claimant applying for judicial review of planning permission for mixed-use development – Whether decision being flawed by remarks by executive council member at planning meeting – Whether Defendant local planning authority acting unfairly by failing to give claimant opportunity to comment on additional documents – Application dismissed
H Ltd had a property interest on part of a site in Bishop’s Stortford and approached the defendants about redevelopment of the site. Under the proposal, the defendants’ offices were to be demolished, more land was to be leased to H and the defendants were to be released from various obligations contained in underleases, and an overage payment was to be made by H. Following negotiations between the defendants and H, confidential terms of agreement were made. The defendants agreed to assist in obtaining planning permission.
The interested parties, as nominee companies acting on behalf of H, applied formally to the defendants, as the local planning authority, for planning permission to demolish the site and construct a mixed-use development comprising retail, leisure, hotel, food and drink, residential, community uses, car parking, servicing and access arrangements, together with alterations to the public highway and/or public realm works and flood mitigation measures. Along with others the claimant objected to the proposed development.
The defendants’ planning committee met to consider the application and all members of the committee had received training about the need to take only matters material to planning into account. After representations by parties opposed to and in favour of the proposed development had been made, the defendants’ executive member for finance addressed the committee to outline the agreement the defendants had reached in principle with H. As such, he said he did not seek to speak on planning matters beyond the principle of development. Outline planning permission (OPP) was subsequently granted subject to completion of a section 106 agreement. H submitted additional documents following the issue of the national planning policy framework and, once the section 106 agreement had been completed, conditional planning permission was granted.
The claimant was granted permission to apply for judicial review on two grounds: (i) whether the defendants’ decision was flawed by reason of the remarks by the defendants’ executive member for finance who was not a member of its planning committee; and (ii) whether the defendants had acted unfairly in granting permission without giving the claimant an opportunity to comment on the additional documents submitted by H after the grant of OPP.
Held: The application was dismissed.
(1) Unless there was an express provision in the council’s constitution or other documents preventing attendance, any councillor could, with the planning committee’s permission, in principle attend and address it. However, there were limits in that councillors could not attend if they had a prejudicial interest in the outcome of the planning committee meeting: under the Model Code for councillors their personal interest was such that a member of the public, with knowledge of the relevant facts, would reasonably regard it as so significant that it was likely to prejudice their judgment of the public interest. Leading members of a council, who had participated in the development of planning policies and proposals, should not normally exclude themselves from decision making meetings In the present case, the councillor in question had no personal prejudicial interest: R (on the application of Richardson) v North Yorkshire County Council [2003] EWCA Civ 1860; [2004] 1 WLR 1920 and R (on the application of Lewis) v Redcar and Cleveland Borough Council [2007] EWHC 3166 (Admin); [2009] EWCA Civ 3; [2009] 1 WLR 1461 considered.
(2) On the evidence, the court was not persuaded that the councillor’s reference to the arrangement with H, or its existence, had any influence on committee members. The planning officer’s report directed members to the relevant planning issues and the majority followed its recommendations in favour of granting OPP. The court rejected the criticism that the report advising the committee that the pre-existing arrangements should be given “no weight” was not equivalent to telling members that they were legally irrelevant. That was the type of textual analysis of planning officers’ reports which the courts had long deplored. Use of the words “no weight” was adequate and made clear to the planning committee that the land deal was to be disregarded and was therefore irrelevant to its decision. There was no reasonable basis for concluding that, despite the clear direction in the planning officer’s report, the members would nonetheless have done something else. All of the councillors in the majority were experienced and had received training which emphasised the importance of focussing on planning matters only in their decision making: R (on the application of Condron) v National Assembly for Wales [2006] EWCA Civ 1573; (2007) 2 P & CR 4; [2006] PLSCS 247, R (on the application of Morge) v Hampshire County Council [2011] UKSC 2; [2011] 1 WLR 268; [2011] PLSCS 14 and R (on the application of Midcounties Co-operative Ltd) v Swindon Borough Council [2013] EWHC 3775 (Admin) considered.
(3) The defendants had not acted unfairly in granting planning permission by failing to give the claimant and others the opportunity to comment on the additional documents submitted by H. The documents in question had been placed on the planning file, albeit not as good practice dictated uploaded onto the website, and the claimant had the opportunity to comment on them. There had been no material change arising in respect of the changes in policy. Any unfairness to the claimant was entirely technical. The NPPF did not make any difference to the assessment of the application but strengthened it. English law did not recognise a technical breach of natural justice: George v Secretary of State for the Environment (1979) 38 P & CR 609
Iain Colville and James Sandham (instructed by Nockolds Solicitors) appeared for the claimant; Saira Kabir Sheikh (instructed by East Hertfordshire District Council) appeared for the defendants; David Elvin QC (instructed by Hogan Lovells) appeared for the interested parties.
Eileen O’Grady, barrister
