Planning appeal – Quashing of decision by consent – Inspector allowing appeal against enforcement notice and granting planning permission – Claimant challenging decision by proceedings in judicial review and under sections 288 and 289 of Town and Country Planning Act 1990 – Inspector’s decision quashed by agreement on grounds of procedural unfairness – Whether claimant entitled to proceed with claim on substantive ground – Whether declaratory relief available – Claim dismissed
The claimant owned land in the vicinity of an equestrian centre, which was located in the green belt. Over the course of 10 years, a building erected at the centre had been the subject of five grants of planning permission by the local planning authority, each of which had been quashed by the High Court in proceedings brought by the claimant. A decision by the authority in 2008 not to issue an enforcement notice in respect of the building was also quashed in a further action by the claimant, and an enforcement notice was subsequently issued. The operators of the equestrian centre appealed against the notice to the defendant secretary of state and an inquiry was held. The inquiry focused on whether there were very special circumstances within the meaning of PPG 2 to justify inappropriate development in the green belt; until then, it had been assumed that the building was inappropriate development. However, after the inquiry, the inspector raised an issue as to whether the development was inappropriate within PPG 2 and invited the parties to make written submissions. He rejected the claimant’s request to reopen the inquiry and determined, on the written submissions, that the development was not inappropriate. He allowed the appeal against the enforcement notice and granted planning permission.
The claimant brought judicial review proceedings and claims under sections 288 and 289 of the Town and Country Planning Act 1990 to quash the inspector’s decision. It advanced substantive grounds relating to the lawfulness of the inspector’s conclusion on inappropriateness and a procedural ground that the inspector had acted unfairly and in breach of natural justice by refusing to reopen the inquiry. The defendant agreed that both the decision on the enforcement notice and that on the planning permission should be quashed on the procedural ground. However, the claimant wanted to proceed with the substantive ground and sought to amend its claim to seek declaratory relief that the inspector had erred in his conclusion on inappropriateness. Issues arose as to whether such relief was available and whether the claim should be allowed to proceed.
Held: The claim was dismissed.
Although declaratory relief could be granted on a judicial review claim, the remedy of judicial review could not be used to assail the ground for the grant of planning permission but only the decision on the enforcement notices. The court had no power to grant declaratory relief on a challenge under section 288 or 289 of the 1990 Act. The claimant’s section 289 appeal was in any event misconceived since the claimant did not have an interest in the land in question. Although the claimant was a “person aggrieved” for the purposes of a section 288 claim, the court’s power on such a claim was confined to quashing the planning permission for error of law, and declaratory relief was not available. The court could give a narrative judgment in which it explained why the challenged decision was erroneous.
Where parties agreed that an error had occurred, the court would not normally give a narrative judgment. However, it could do so where the parties accepted that the grant of permission was flawed on one ground but disagreed on another ground. In such a case, the claimant would have to show that it would receive some real advantage in deciding the disputed ground were decided. In the instant case there was such advantage and the substantive ground was not purely academic, even though the matter would have to be redecided by the inspector. A high threshold was required before the court could usurp the role of the future planning decision maker by deciding matters of planning judgment. However, if it concluded that the matter admitted of only one possible answer, and that no reasonable inspector could find the development to be appropriate, the court ought to say so since a judgment to that effect would bind the inspector and would be valuable.
In the instant case, the court could not conclude that the development was inappropriate. The issue turned on whether the facility provided by the building was “essential” to the use of the land in the sense of being genuinely required for that use; that was a matter of planning judgment and, although the case in favour was not strong, the evidence was not such as to enable the court to conclude that the issue of inappropriateness had only one possible answer.
Peter Village QC and Andrew Tabachnik (instructed by Pinsent Masons LLP, of Leeds) appeared for the claimant; James Maurici (instructed by Treasury Solicitor) appeared for the defendant.
Sally Dobson, barrister
