Challenge by developer of site A to council resolution permitting industrial development of site B contrary to local plan countryside policy – Whether proper consideration given to alternative sites – Application dismissed
The applicant (RLE) had since 1989 attempted unsuccessfully to market a site in Clacton-on-Sea for industrial development. Dalau Ltd, an important local employer, had for many years processed Teflon on another site quite unsuited to its needs. In 1991 Dalau, having proposed a major relocation promising 40 additional jobs, obtained a Department of Trade and Industry regional assistance grant conditionally upon submitting all claims before May 1998. In January 1996 Dalau sought permission for the industrial development of a green field site (Thorpe Road ) which it declared in a supporting letter to be ideally suited for its purposes. The same letter recounted an exhaustive investigation of alternative sites in Clacton including the applicant’s site which was found to be of an unsuitable shape and too close to a row of houses. The application was first considered by a district committee (District Planning Committee) in the wider context of a general need for additional industrial sites in the Clacton area. A report before that committee noted severe local unemployment and the need to release some 15ha for industrial development. After referring to Dalau’s rejection of the applicant’s site and the DTI deadline, the report described the Thorpe Road site as part of a green wedge the development of which would involve an undesirable departure from local plan countryside policies. On June 25 1996 the area committee responsible for the Dalau application, having received that report together with a DPC recommendation that the application be refused, decided to defer consideration for three weeks for urgent discussions with the DTI and others on the possibility of finding a suitable alternative site. On July 16 1996 the reconvened area committee resolved to grant planning permission subject to referring the application to the Secretary of State for the Environment. On learning that the application would not be called in, solicitors for RLE demanded that no grant should issue without an independent review of Dalau’s reasons for rejecting alternative sites. The council rejected that demand. RLE applied for judicial review (pending which the grant was held in abeyance) and sought to quash the July 16 resolution primarily on the ground that the council had failed to have regard to the material consideration of the availability of suitable alternative sites, there being no evidence to demonstrate why the area committee allowed the application, given its earlier uncertainty.
Held The application was dismissed.
There was nothing in planning law requiring a committee, unsure about alternative sites, to resolve that uncertainty by calling for a fresh investigation. Moreover (distinguishing Secretary of State for the Environment v Edwards (1994) 1 PLR 62) the lack of evidence as to what subsequently induced the later resolution did not demonstrate that the alternative site issue had been left out of account. Since the committee was fully apprised of the policy presumption against the development and the countervailing economic considerations, such evidence would only have gone to the quality of the decision, which was not susceptible to judicial review.
David Holgate QC (instructed by Geoffrey Searle) appeared for the applicant; Andrew Kelly (instructed by Sharpe Pritchard, London agents for the solicitor to Tendring District Council) appeared for the first respondents; Mark Lowe QC and Johnathan Easton (instructed by Thompson Smith & Puxon, of Colchester) appeared for the second respondent
