Fareham Borough Council misused its position as a landowner when it refused to allow a company that was making a planning application access to Solent Airport to carry out a badger survey.
Enterprise Hangars Ltd, which brought the action against the council, wants to build aircraft hangars with accommodation on the council-owned site. As there is a reasonable likelihood that there are badgers on the site, Enterprise must provide a habitat survey when applying for planning permission.
However, according to a judgment handed down yesterday, when Enterprise asked for access to the land to carry out a survey, the council refused. The council later refused planning permission. One of the reasons was failure to provide a habitat survey.
According to the ruling, the council had already told Enterprise it had no intention of selling Enterprise the parcel of land that it wished to build on because it didn’t fit in to its development plans.
Enterprise sued the council, alleging it had behaved in a procedurally irregular way by using its position at the landowner to influence the planning process.
In his ruling, Mr Justice Lane agreed.
“The fact of the matter is that the defendant used its position as landowner to put the claimant at a material disadvantage in the planning process,” he said.
“The fact that a landowner has stated an intention not to permit development on their land is capable of being a material consideration in the planning determination. That, however, is the extent of its relevance.
“I am in no doubt that the defendant has used its position as landowner to thwart the proper operation of the planning process,” he said.
He said the decision refusing planning permission should be quashed, which means the council must reconsider its decision.
He said he was “minded” to order the council to give Enterprise access to the site to carry out a badger habitat survey.
Enterprise Hangars Ltd v Fareham Borough Council
Administrative Court (Mr Justice Lane) 10 August 2023
