Town and country planning – Development – Habitat survey/assessment – Claimant applying for planning permission to development land owned by defendant local authority – Defendant refusing access to land by ecological consultant to conduct badger survey – Claimant applying for judicial review – Whether refusal as landowner interfering with defendant’s functions as planning authority – Application granted
In March 2015, the defendant local authority acquired 369 acres of land at Daedalus, mainly comprising the airfield at Solent airport and two development areas to the east and west.
The claimant wished to apply to the defendant, as local planning authority, for permission to undertake development at the airport comprising nine mixed-use live/work hangar buildings for the aviation sector.
Since the defendant had carried out an inspection and concluded that the presence of badgers was likely on the site, the claimant needed to provide a habitat survey/assessment concerning badgers, when making its application.
However, the defendant, as landowner, refused to provide the claimant’s advisor with access to undertake the assessment. The lack of an assessment was one of the reasons why the defendant refused the application for planning permission.
The claimant applied for judicial review of the defendant’s refusal to give it access seeking an order quashing that decision and a mandatory order requiring the defendant to give the claimant access to carry out the survey/assessment.
The claimant contended that: (i) the defendant had fettered its discretion as planning authority by acting as a private landowner for the site, which was identified within the defendant’s own planning policies for development; (ii) in its position as planning authority, the defendant had given the claimant an unfair and impossible material consideration to answer; and (iii) issues of land ownership were not relevant to the planning process and should not be used by planning authorities to stifle development.
Held: The application was granted.
(1) Despite the apparent width of the defendant’s powers of land acquisition and ownership, arising under section 101 of the Local Government Act 1972 and section 1 of the Localism Act 2011, there was an essential difference between the position of the defendant and a private landowner.
The defendant was a planning authority, entrusted by parliament to discharge its functions as such in accordance with the principles of public law. Accordingly, the defendant could not exercise the rights that it would otherwise have as a landowner if and to the extent that that would inhibit its ability to decide applications for planning permission according to law.
Regulation 3 of the Town and Country Planning General Regulations 1992, in making provision for a local authority to consider, as local planning authority, an application for planning permission made by that authority, showed that parliament had recognised the multifunctional nature of local authorities. As the regulations made plain, however, there had to be an effective separation of those functions, entailing restrictions upon committees, sub-committees and officers.
(2) The claimant’s request to go onto the site in order to undertake a badger survey was and must have been appreciated by the defendant as being directly for the purpose of making an application to the defendant for planning permission. The defendant’s primary reason for denying access was that the claimant’s development proposal was not regarded as compatible with the defendant’s vision for the area. That meant that the defendant would not sell the land to the claimant. Accordingly, there was no point in letting the claimant undertake the badger survey.
The defendant’s stance therefore had to be that development at Solent Airport, within the terms of the defendant’s policies, would necessarily be impeded if any residential elements were to be permitted, such as the claimant’s live/work units. However, that was manifestly a planning issue, to be decided, in the first instance, by the defendant as local planning authority, rather than by the defendant as landowner.
The decision of the local planning authority was not final. An appeal lay to the secretary of state’s planning inspector and the claimant had exercised that right of appeal.
(3) By refusing to allow the claimant to undertake the badger survey, the defendant had constrained the scope of the appeal. The claimant faced the difficulty that the presumption in favour of sustainable development in the National Planning Policy Framework did not apply where the plan or project was likely to have a significant effect on a habitat site unless an appropriate assessment had concluded that the plan or project would not adversely affect the integrity of the habitat site: paragraph 182.
The refusal of the defendant to allow the badger survey to take place meant that the “tilted balance” in favour of development was unavailable to the claimant to deploy before the inspector. In any event, the relevant decision-making involved those having responsibilities in respect of the defendant’s functions as local planning authority.
The defendant had used its position as landowner to put the claimant at a material disadvantage in the planning process. By denying access, the defendant prevented the claimant from being able to make any considered response, based on its own observations, to the assertions of the defendant’s planning officer. As a result, the planning application went forward without those assertions being tested with the result that the absence of a badger survey became a reason for refusing planning permission.
(4) Section 1 of the 2011 Act did not permit a local authority to act contrary to the principles of natural justice. It was inconceivable that, in enacting section 1, parliament envisaged that local authorities would be absolved from the requirements of procedural fairness, even though “an ordinary person” was not subject to those.
The planning officer’s actions created potential unfairness on the part of the defendant, in its capacity as local planning authority, which the defendant could and should have eliminated, by granting the claimant access, in the defendant’s capacity as landowner.
It was immaterial that, if Solent Airport had been owned by a private person who refused access, the defendant could not have done anything about the matter. Local authorities had to act in accordance with the requirements of public law: Spitfire Bespoke Homes Ltd v Secretary of State for Communities and Local Government [2020] EWHC 958 (Admin) considered.
(5) In all the circumstances, it was impossible to escape the conclusion that the defendant had simply not acted as a rational local authority should. It had put forward justifications for refusing to let the claimant inspect for badger activity, which had no basis in law and which, in certain respects, were entirely spurious.
Poonam Pattni (instructed by Lawdit Solicitors of Southampton) appeared for the claimant; Oliver Capildeo (instructed by Southampton, Fareham & Havant Legal Partnership) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read a transcript of Enterprise Hangars Ltd v Fareham Borough Council