Planning approval — Crown land — Accommodation for asylum seekers — Home Office issuing notice of proposed development — Private contractor to build and operate centre — Whether development being carried out on behalf of Crown and Crown immunity thus applying — Appeal dismissed
The appellants were the local planning authority for an area in which the Home Office proposed to construct an accommodation centre for asylum seekers. The Home Office intended to retain ownership of the site, but to grant a lease to a private design, build and operate (DBO) contractor to construct and run the centre. It took the view that, rather than applying for planning permission under section 299 of the Town and Country Planning Act 1990, it was appropriate to follow the non-statutory consultation procedure prescribed in Part IV of the memorandum accompanying Circular 18/84 (the NPD procedure). That procedure was applicable to developments by government departments, because development by the Crown did not require planning permission and was, by virtue of section 294(1) of the 1990 Act, immune from enforcement action. In the course of that procedure, the first respondent secretary of state held a non-statutory public inquiry before an inspector. The inspector concluded that it had not been established that the development was appropriate for a rural area, but the first respondent disagreed and decided to give his approval.
The appellants sought to quash that decision. They argued, inter alia, that since the development was to be carried out subsequent to the grant of a lease to a private contractor, the Home Office should have followed the section 299 planning procedure. Dismissing the claim, the judge held that the accommodation centre was to be constructed and operated for the purposes of the Home Office on behalf of the Crown, and that the non-statutory procedure was therefore appropriate: [2004] 16 EG 111; [2004] PLSCS 88.
The council appealed, raising issues of whether: (i) the proposed development was by or on behalf of the Crown; and (ii) it was an abuse of power for the Home Office to use the NPD procedure when it could have applied for planning permission under section 299 of the 1990 Act.
Held: The appeal was dismissed.
As a matter of law, development by a DBO contractor, carried out by virtue of a private interest in Crown land, could come within section 294(1). Since the Crown was not subject to planning control, and therefore did not need the protection of section 294(1), the only purpose of the section in relation to Crown land was to protect the person (if any) who was entitled to occupy the land by virtue of a private interest. To qualify for that protection in respect of development, the land had to have been Crown land at the time at which the development was carried out. The existence of a private interest in the land did not prevent it from being Crown land.
In any particular case, it was a question of fact and degree as to whether the existence of the DBO contractor’s private interest, and the fact that the development was carried out by virtue of that interest, led to the conclusion that the development served the private interest, rather than being undertaken on behalf of the Crown. The court should not substitute its own view unless the view of the decision maker was unreasonable. In the present case, the only reasonable conclusion was that the development was to be carried out by or on behalf of the Crown.
Furthermore, it was not an abuse of power for the Home Office to use the NPD procedure rather than apply for planning permission under section 229, which had been enacted to enable the Crown to dispose of land with the benefit of planning permission. Given the inclusion of the word “may” in section 299(1), parliament had not intended that section 299 had to be used wherever the Crown wished to dispose of land, or an interest in land, with a view to development being carried out by a private developer. The non-statutory procedure was no less protective of the public interest than the controls secured by the 1990 Act, since the safeguards afforded by section 299 were not materially different from those that were available under the NPD procedure.
David Elvin QC and Reuben Taylor (instructed by Sharpe Pritchard, as agent to the solicitor to Cherwell District Council) appeared for the appellants; Philip Sales and Sarah Moore (instructed by the Treasury Solicitor) appeared for the first respondent; Keith Lindblom QC and Rupert Warren (instructed by Berwin Leighton Paisner) appeared for the interested party, the Secretary of State for the Home Department.
Eileen O’Grady, barrister
