In R (on the application of Smech Properties Ltd) v Runnymede Borough Council [2016] EWCA Civ 42; [2016] PLSCS 36 the Court of Appeal was faced with an appeal against the judgment of Patterson J by which she dismissed a claim by the appellant for judicial review of a planning permission granted by the council in 2014 for mixed-use development on part of the former Defence Evaluation and Research Agency (“DERA”) site north of the M3 at Chertsey, Surrey.
The appellant, Smech Properties Ltd, is owned by Sheikh Mohammed bin Rashid al-Maktoum, and has mounted a long-running challenge to Runnymede Borough Council’s decision to allow developer Crest Nicholson to build on the former DERA site. Smech owns the Longcross Estate in Surrey, close to the DERA site, and opposed the grant of planning permission throughout the process, according to court papers.
At first instance, there were three grounds of challenge to the grant of permission. The judge rejected two of these but found that the remaining one was made out: the council had been given and followed some incorrect advice in the officer report regarding the impact of the grant of permission on its ability to meet its requirements for additional housing provision in its area. However, she assessed that had the correct advice been given the council would inevitably still have decided to grant planning permission for the development and therefore in exercise of her discretion she dismissed the appellant’s claim to quash the permission.
The appellant sought permission to appeal on a number of grounds. Permission was refused by Sullivan LJ on the papers on all grounds. Upon oral renewal of the application, permission to appeal was granted by Lewison LJ limited to one ground, namely that the judge had erred in exercising her discretion to dismiss the claim.
The Court of Appeal concurred with the High Court. The court held that the judge was entitled to make the assessment she did that it was inevitable that if the planning committee had been properly advised about the position in relation to housing need in the council’s area it would have made the same decision to grant planning permission for this development on the green belt. The Court of Appeal went on to state that, on the facts of this case, in light of the obligation of the council to comply with applicable national planning policy, the pressing nature of the objectively assessed housing need in its area and the especial suitability of the site for development to make a significant contribution to meeting that need, it was indeed inevitable that if the council’s planning committee had been properly advised it would still have decided to grant planning permission for this development.
Martha Grekos is a partner and head of planning at Irwin Mitchell
