Claimant and third defendant submitting planning applications in respect of neighbouring greenfield sites — Both applications called in by first defendant — First defendant granting permission to third defendant without reference to claimant’s application — Whether claimant’s application therefore prejudiced — Whether appropriate to challenge first defendant’s decision by means of a claim under section 288 of Town and Country Planning Act 1990 — Claim dismissed
In March 2002, the second defendant local council granted outline planning permission to the claimant and the third defendant builder in respect of neighbouring greenfield sites. Both applications were called in by the Secretary of State. Although they were both dealt with by the same official and within the same time-frame, the applications were considered neither simultaneously nor comparatively. Permission was granted to the third defendant, by way of decision letter, in February 2002, but the claimant’s application was not determined.
The claimant maintained that the decision letter had indicated that planning permission would be granted in respect of one greenfield site only. It claimed that this should have been drawn to its attention so as to enable it to make the necessary representations, and that, in determining the third defendant’s application without referring to the claimant’s application, the Secretary of State had failed to take into account a material consideration. It was contended that the Secretary of State had caused prejudice to the claimant by failing properly to apply the policy requirements of PPG 3, which set out the criteria for prioritising qualifying sites, and by failing to consider both applications comparatively when determining which application should succeed.
The defendants submitted that since the claimant had failed to raise these issues at the time of the original planning application, it was not open to it at this stage to bring such a challenge under the provisions of section 288 of the Town and Country Planning Act 1990.
Held: The claim was dismissed.
Not only was the outcome of the third defendant’s application foreseeable by the claimant but, in deciding the application, the Secretary of State had requested further information relating to the issue of housing land supply and the claimant had been aware of this request. It had therefore had the opportunity to request that the two sites be considered comparatively at that time, but had failed to do so. In general terms, the Secretary of State was under no obligation to undertake such a comparison other than in exceptional circumstances (see R (on the application of Scott) v North Warwickshire Borough Council [2001] EWCA Civ 315; [2001] 2 PLR 59), and it was not unreasonable for him not to do so in the circumstances of this particular case. Similarly, he had acted neither perversely nor erroneously under the provisions of PPG 3.
Since the applications were called in independently and no request had been made that they should be assessed comparatively, the Secretary of State was under no obligation to inform the claimant of the contents of correspondence with the third defendant. The fact that the same official was in receipt of the two planning applications was irrelevant.
The defendants failed to advance appropriate authority to support the contention that section 288 was an inappropriate vehicle for such a challenge. However, in general terms, authority demonstrated that the mere failure to raise a matter before a decision maker at the time is not always a bar to raising it by subsequent challenge. The deciding factor is whether the claimant is a “person aggrieved”: see Times Investment Ltd v Secretary of State for the Environment [1990] 3 PLR 111. Had the substantive grounds of the challenge been well founded, the claimant would have been a “person aggrieved” for the purposes of the hearing, and it would not have been a proper exercise of the court’s discretion to prevent the challenge. However, given that the substantive grounds of the claim had failed, the issue was irrelevant.
Robin Purchas QC and Jonathan Milner (instructed by the solicitor to Laing Homes Ltd) appeared for the claimant; David Forsdick (instructed by the Treasury Solicitor) appeared for the first defendant; Timothy Corner QC and John Pugh-Smith (instructed by Olswang) appeared for the third defendant; the second defendants, Fareham Borough Council, did not appear and were not represented.
Vivienne Lane, barrister
