Planning application outstanding for substantial period of time — Significant policy changes in that time amounting to material considerations — Defendant council failing to reconsider application in light of changes — Extent of duty under section 70(2) of Town and Country Planning Act 1990 — Whether applicant with no personal interest disbarred from proceeding — Appeal dismissed
In 1995, several interested parties submitted an application for planning permission for the development of greenfield land. The application remained outstanding for the following five years, during which time significant policy changes, including those relating to the desirability of affordable housing and the use of brownfield sites, came into effect. Although the outstanding application was borne in mind when these policy changes were adopted, the defendant council did not reconsider the application itself prior to granting permission in October 2000.
The appellant’s interest in the matter arose as a result of her long residence in the area. She contended that the council’s duty under section 70(2) of the Town and Country Planning Act 1990 required them to closely reconsider the application before granting permission, given the extensive changes in circumstance while the application was outstanding. In particular, she claimed that the application should have been considered in the light of the fact that the local airfield and barracks had been made redundant, and a brownfield site had therefore become available for redevelopment.
By his order of 26 October 2001, Ouseley J refused the appellant permission to apply for judicial review, and found that the appellant had no interest in the matter of affordable housing provision and that it would be an abuse of process to allow her to advance any argument on that point. The appellant appealed that decision.
Held: The appeal was dismissed.
A planning authority’s duty under section 70(2) was discharged if, on the date at which the decision notice was issued, they had considered all material considerations affecting that application, with that application in mind. This did not necessarily mean that the application had to be placed before the authority for specific reconsideration when new material considerations arose. However, there would be a breach of duty if, at the time of issuing the notice, the delegated officer was not satisfied that: (a) the authority had been aware of some factor that might be rationally described as a material consideration; (b) they had considered this factor with the application in mind; and (c) on having reconsidered the matter in the light of the new factor, the authority would have reached the same decision. It was plain, on the facts, that the defendants had discharged their duty under section 70(2).
With regard to the issue of standing, an important distinction had to be drawn between the person who brought proceedings with no real or genuine interest in obtaining the relief sought, and litigants who had a real and genuine interest and who relied upon matters in which they had no personal interest. In challenging an administrative decision, such a litigant was entitled to present a challenge on all available grounds, and it would be unjust to disbar such litigants from relying upon grounds in which they had no personal interest. Such a conclusion was not challenged by the decision in R v Somerset County Council, ex parte Dixon [1997] JPL 1030. In the instant case, therefore, the appellant was not disbarred from relying upon the argument based on the issue of affordable housing; however, on the merits, the appeal failed.
Wyn Williams QC and Martin Edwards (instructed by Richard Buxton, of Cambridge) appeared for the appellant; Alice Robinson (instructed by the solicitor to South Cambridgeshire District Council) appeared for the defendants; Richard Drabble QC (instructed by Marrons, of Leicester) appeared for the interested parties.
Vivienne Lane, barrister
