A local authority must separate its functions as planning authority and landowner. Failure to do so renders its planning decisions liable to judicial review.
The High Court has considered this issue in Enterprise Hangars Ltd v Fareham Borough Council [2023] EWHC 2060 (Admin); [2023] PLSCS 139.
Solent Airport is located in an area known as Daedalus, acquired by the defendant in March 2015 with the intention that it should become the most significant commercial development area in Fareham. The claimant sought planning permission in March 2022 to create nine mixed-use live/work hangar buildings there for the aviation sector. The claimant needed to provide a badger habitat assessment when making its application.
The claimant’s requests for access to visit or to carry out the assessment by drone were refused on grounds that the defendant, as landowner, would not sell the land required for the development because the proposed residential use did not form part of its objectives for the site.
Google Earth images showed mown grass on the development site, which the claimant submitted meant it was unlikely there would be badger setts there. The planning officer went on site and subsequently responded that a known sett existed on the airfield and a survey would be required before planning permission could be issued. He refused to make carrying out the survey a condition of planning permission. Permission was refused in November 2022, principally for reasons relating to protected species.
The claimant’s application for judicial review succeeded on all grounds. The defendant had fettered its discretion as planning authority in its capacity as landowner. The site was identified within the defendant’s own planning policies for development and there was no discernible provision rendering residential use inimical to its objectives. A landowner’s objection to a scheme should be maintained outside the planning process. The defendant could prevent the development even if planning permission was granted.
There was also procedural irregularity. By carrying out its own survey of the site following submission of the Google Earth images, the defendant concluded that there was a reasonable likelihood of badgers being present, so ruling out the possibility of the badger assessment being made a condition of the grant of planning permission.
The decision was also irrational. It put forward justifications for refusing to let the claimant inspect for badger activity which had no basis in law and which in certain respects – that undertaking a survey would disrupt airport operations – were entirely spurious.
The court was prepared to make a mandatory order for access for the survey in the absence of the defendant undertaking to permit it.
Louise Clark is a property law consultant and mediator
