PP 2009/94

The Town and Country Planning (Consultation)(England) Direction 2009 came into force on 20 April 2009. It replaces a number of earlier directions, and it requires local planning authorities to consult the secretary of state before granting planning permission for certain types of development. This provides the Secretary of State with an opportunity to exercise his call-in powers under section 77 of the Town and Country Planning Act 1990. One of the aims of the direction is to ensure that ministerial involvement takes place only when necessary. Accordingly, there will now be far fewer occasions on which consultation has to take place. One of the cancelled directions was the Town and Country Planning (Development Plans and Consultations) (Departures) Direction 1999, which was at the heart of a claim for judicial review in R (on the application of Brown) v Carlisle City Council [2009] EWHC 2519 (Admin); [2009] PLSCS 281. A developer had applied to the council for planning permission to carry out non-airside works at Carlisle airport, supporting the application with an environmental statement. The council concluded that the 1999 Direction did not require the application to be referred to the secretary of state because article 2(2) of that direction allowed the grant of planning permission on such a departure application if the local planning authority imposed “such conditions” on the planning permission as would ensure that the development was carried out in accordance with the development plan. Additional airside works would be required to bring the developer’s proposals within the development plan and it was agreed that these would be made the subject of a section 106 agreement. That agreement was concluded and the council granted planning permission. The claimant sought permission to apply for judicial review of the council’s decision. One of his grounds of challenge was that the application should have been referred to the secretary of state pursuant to the 1999 Direction. The claimant’s specific contention was that article 2(2) could not be construed as including restrictions or requirements imposed by a section 106 agreement because the term “conditions” has a clear meaning in the planning context and cannot be read to embrace obligations under a section 106 agreement. The court rejected this ground, holding that where a section 106 agreement, entered into before the grant of planning permission, has the effect of securing that the application accords with the development plan, the question of referral to the secretary of state under the 1999 Direction does not arise. The development no longer represents a departure from the development plan. To hold otherwise would lead to the absurd result that an application should be referred to the secretary of state notwithstanding that, if granted, its implementation would not offend the development plan. The claimant’s other grounds of challenge were equally unsuccessful and the application was dismissed. John Martin is a freelance writer