Developers applying for planning permission to develop site adjoining claimant’s property – Developers offering to surrender established use certificate and interim development order rights over site – Local planning authority resolving to grant permission – Secretary of State calling in application – Applicant seeking judicial review – Whether offer an irrelevant consideration for Secretary of State – Whether appropriate use of judicial review – Application dismissed
The applicant was the owner and occupier of Henlow Grange Health Farm, a Grade II* listed building adjoining land that was the subject of an application for planning permission by Curson Developments Ltd and Henlow Building Supplies Ltd (the interested parties). The applicant opposed the planning application. In June 2000 the respondents, Bedfordshire County Council (the council), resolved to grant planning permission. However, the Secretary of State decided to call in the application for his determination pursuant to section 77 of the Town and Country Planning Act 1990.
Between the date of the council’s resolution and the date of the call-in, the applicant filed an application for permission to seek judicial review of the council’s resolution. It contended that the council had erred in treating as a material consideration an offer by the interested parties to “surrender” an established use certificate (EUC) and interim development order (IDO) rights. Following the call-in, the applicant retained its substantive grounds of challenge and sought a declaration that the offer to surrender the EUC and IDO rights was an irrelevant consideration for the Secretary of State in his determination of the application.
Unless held to be legally irrelevant, the offer to surrender the EUC and IDO rights was likely to play a significant part in the inquiry held pursuant to the call-in. The applicant was, in reality, seeking an advisory declaration, binding upon the Secretary of State, who was not a party to the proceedings, as to the matters that he could or could not take into consideration in reaching a decision on the planning application before him. The court had jurisdiction to make such a declaration, but the issue was whether it was appropriate to do so. The applicant contended that it was in the interests of good administration to resolve the matter at that stage.
Held: The application was dismissed.
1. The application was an inappropriate use of judicial review. The comprehensive statutory code governing the decision-making process in planning applications was entirely apt for the determination of the questions raised by the applicant. In general, the existence of an appropriate alternative procedure was sufficient reason for refusing to entertain an application for judicial review. The circumstances of the present case did not justify an exception from the normal course.
2. There were particularly strong reasons for allowing a planning application to take its normal course through the statutory procedures. Those procedures involved public participation at the inquiry, with the possibility of additional evidence and argument. It was wrong in principle to decide matters on the basis of pre-emptive court proceedings involving a limited number of parties and based upon the evidence they chose to file.
3. The particular issues raised by the claimant involved questions of fact and degree, and were properly the province of the inspector and the Secretary of State, rather than the court. The very question of whether a particular consideration was material for the purposes of a planning decision depended upon the circumstances of the individual case. It would be wrong or imprudent to make an inflexible ruling in advance that the interested parties’ offer was incapable of being a material consideration, without knowing how or why the Secretary of State thought it right to take it into account.
4. Whether it was necessary for the court to determine the issues at all, and, if so, in what form they arose for determination, would depend upon the Secretary of State’s eventual decision on the planning application. He might grant or refuse permission on different grounds. The court should be very slow to decide points that might not need to be decided, or to decide them in a form that might differ from the way in which they ultimately arose for determination.
Robert Fookes and Reuben Taylor (instructed by Blake Lapthorn) appeared for the claimant; Timothy Corner (instructed by the solicitor to Bedfordshire County Council) appeared for the defendants; Timothy Straker QC (instructed by Gerald Park) appeared for the interested parties.
Sarah Addenbrooke, barrister
