Town and country planning – Planning permission – Conditions – Claimant seeking judicial review of defendant local planning authority’s decision to grant planning permission for mixed use development – Whether planning officer having power to grant permission without express delegation – Whether consideration being given to whether defendant’s resolution bearing significant weight in light of changed circumstance and defective legal advice – Whether regulatory board alone having power to grant permission in changed circumstance – Application dismissed
The interested party developer applied to the defendant local authority for planning permission for over 300 houses, a hotel, 12,000 square metres of retail floorspace, restaurants, office space, a church/community hall, public realm, highway improvements and 650 car parking spaces in the centre of Gravesham, known as the Heritage Quarter. The application was considered by the regulatory board, which was a committee of the defendants which dealt with planning applications. The board passed a resolution approving the application in principle. There then followed negotiations between the interested party and the defendants’ officers about the terms of an agreement under section 106 of the Town and Country Planning Act 1990 and planning conditions. A planning officer subsequently decided to issue the permission, purportedly acting under delegated powers.
The claimant, a member of a local heritage group, applied to quash the decision to grant permission. She contended that: (i) the officer had no power to grant permission, once the matter had been considered by the regulatory board, without express delegation or without the outcome of the negotiations being reported back to the regulatory board; (ii) if the officer did have delegated powers to grant permission, he had failed to consider whether the regulatory board resolution could bear the significant weight given to it in the light of changes of circumstance, or in the light of flawed legal advice received about the risk of an order that the defendants pay costs of the appeal for an unreasonable refusal of planning permission; and (iii) there had been a material change in circumstances after the resolution but before the actual grant of permission which the regulatory board, the only body empowered to grant permission, had failed to take into account, including differences between the section 106 agreement as negotiated and as aimed for.
Held: The application was dismissed.
(1) It was commonplace, where a committee had resolved in principle that a permission should be granted, for the power to grant permission to be delegated to an officer if satisfied with the section 106 agreement and conditions. It would also be common for an officer to decide whether there were any changes in circumstance which meant that the final decision required further board approval. In reality that was what had happened in this case. No one had ever thought that what the officer had done was unauthorised. The conduct of the officer, who had treated it all as if he had been doing exactly what had been expected of him, and the reaction of his superior officers and all the members of the board and the defendants pointed to the answer. In any event, the defendants had clearly endorsed the process and had adopted the decision.
(2) There was nothing to warrant the conclusion that giving significant weight to the resolution of the regulatory board had involved an error of law. There had been no changes beyond the sort of negotiating adjustment which the board would have expected to enable the scheme to come to fruition. Although the officer had not in terms asked whether the board might have made a different decision in the light of those circumstances, it was clear what his answer would have been and it was impossible to say that he was wrong in the light of the reaction of the board at all times. Furthermore, there was no merit in the arguments regarding the board’s reliance on allegedly defective legal advice. The claimant’s submission seemed to amount to an argument that the advice to the members should have been that there had been grounds upon which a refusal of permission, albeit rejected on appeal, could have avoided an award of costs, but would not itself have been a reasonable planning decision. There was no merit in that point. Its variant, that the officer, having considered what weight to give the board’s resolution, had failed to appreciate that error on the part of the legal advice and, therefore, had wrongly given its resolution significant weight, was even worse. The planning officer was not supposed to conduct some sort of judicial review of the residuary board resolution more than three months later and hold it to be of no value for legal error.
(3) Where there were material changes in circumstances after the resolution to grant permission but before the actual grant of permission, those material considerations had to be considered by the decision-maker before the actual grant of permission. However, the changed circumstances could not be regarded as material in the present context, that is, material to whether a different decision might be reached. That was not realistic. Once the officer had had authority to judge the adequacy of the negotiations on the section 106 agreement and to issue permission if satisfied, that would also encompass authority to decide that other factors did not amounted to a reason not to issue the permission, if authority had been needed: R (on the application of Kides) v South Cambridgeshire District Council [2002] EWCA Civ 1320; [2004] 4 PLR 66 and R (on the application of Hinds) v Blackpool Borough Council [2012] EWCA Civ 466; [2012] PLSCS 41 considered.
James Findlay QC (instructed by DMH Stallard LLP) appeared for the claimant; Timothy Straker QC and Hugh Flanagan (instructed by Sharpe Pritchard) appeared for the defendants; Paul Brown QC (instructed by Clyde & Co) appeared for the interested party.
Eileen O’Grady, barrister
Read a transcript of R (on the application of Couves) v Gravesham Borough Council here
