Planning permission – Delegated powers – Defendants granting planning permission under delegated powers – Whether decision to grant planning permission procedurally unfair – Whether defendants’ officer entitled to determine application where exceptions in scheme of delegation applicable — Whether decision to grant planning permission was irrational or unreasonable — Local Government Act 1972 – Application allowed in part
In 2008, the defendant council granted planning permission to the interested party to replace an existing building with 12 flats. The decision to grant permission was taken by the defendants’ principal planning officer, and the notice of permission was signed by their chief planning and development officer, acting in exercise of delegated powers pursuant to the defendants’ scheme of delegation. Under the council procedure rules contained in the defendants’ constitution, which had been adopted in 2001, an annual meeting was to be held during which the scheme of delegation was to be agreed. In practice, the defendants had not approved the entire scheme by express resolution each year, but had adopted the practice of approving amendments to its constitution, including those parts relating to the scheme of delegation. The scheme under which permission had been granted to the interested party had operated since 2003.
The claimants sought judicial review of the grant of planning permission on the grounds that: (i) the decision to grant permission had been reached in a manner that was procedurally unfair because the application should have been determined by a panel rather than an officer; (ii) the relevant scheme of delegation had not been validly adopted in accordance with the requirements of the defendants’ constitution and the Local Government Act 1972; (iii) the defendants’ officer should not have determined the application because certain exceptions contained in the scheme of delegation applied to it; and (iv) the decision to grant permission was irrational or unreasonable.
The High Court declined to quash the planning permission on the basis of ground (ii): see [2009] EWHC 3220 (Admin); [2009] PLSCS 345. At a separate hearing, the court was asked to consider the remaining grounds.
Held: The application was allowed in part.
(1) The court was not persuaded that the planning permission should be quashed on the grounds of procedural unfairness. The issue of whether the application should have been determined by an officer or by a panel was one for the defendants to determine in accordance with their criteria. Assuming that an officer of the defendant was entitled to determine the application, there was no basis for concluding that it should be quashed on the grounds of procedural unfairness: R (on the application of Norton) v London Borough of Lambeth [2007] EWHC 376 (Admin) considered.
(2) When the issue of whether the power to grant planning permission had been delegated to a planning officer arose under a scheme of delegation, and the resolution of that issue depended on the exercise of a planning judgment, a decision by the officer to exercise the delegated power and grant planning permission might be impugned on the ground that his decision was irrational or unreasonable. In assessing whether such a decision was irrational or unreasonable, the court would approach its task in the same way as though it were to quash the planning permission on the ground that the decision to grant permission was irrational or unreasonable. In most cases where the issue of whether the power to grant planning permission had been delegated depended on the exercise of a planning judgment, a planning officer would not have to adopt a formalised two-stage approach when determining whether he was authorised to grant permission and, if so, whether permission should be granted. The factors relevant to both issues would be interrelated, if not identical. However, in some occasions, an officer could form the view that a planning permission should be granted but yet act irrationally or unreasonably if he also concluded that he was authorised to grant the permission: R (on the application of Carlton-Conway) v Harrow London Borough Council [2002] EWCA Civ 927; [2002] 3 PLR 77 and R (on the application of Springhall) v Richmond upon Thames London Borough Council [2006] EWCA Civ 19 considered.
(3) In the instant case, the planning permission had been granted subject to the inclusion of a scheme for the provision of an additional or improved green space but the condition did not mention that the interested party might fulfil the condition by paying money instead of providing additional green space. However, it was clear that no reasonable decision maker would have granted planning permission subject to such a condition, relating to one of the main planning issues for consideration, without a clear and reasoned justification for its imposition and an appraisal of how it should be fulfilled. No proper appraisal had been undertaken of the legality of the condition or whether it would or could achieve its aim at any time before the permission was granted. It was important that the notice by which the grant of planning permission was conveyed to the interested party justified the imposition of the condition relating to green space. There was no suggestion that what was or may have been intended was that the interested party should pay some money. Accordingly, it was unreasonable or irrational to grant planning permission subject to such a condition.
(4) Furthermore, it was unreasonable for a planning permission to be granted when many issues relating to potential land contamination, which had been identified as one of the main points to be considered, were unresolved. Although solutions could be found to overcome problems associated with land contamination, a reasonable local planning authority would have demanded more information from the interested party before deciding to grant permission, rather than grant permission subject to conditions when the extent of any potential problem was unknown.
Paul Greatorex (instructed under direct access) appeared for the claimants; Iain Colville (instructed by the legal department of Leeds City Council) appeared for the defendants.
Eileen O’Grady, barrister
