Where a challenge is made under section 288 of the Town and Country Planning Act 1990 to the decision of the secretary of state, or his inspector where appropriate, in relation to a called-in planning application or a planning appeal, it is clear from section 285(b) that relief is discretionary. That is to say, even where the grounds are made out, the court has a discretion not to quash the decision. Likewise, in a claim for judicial review of a planning decision, it is accepted also that relief is discretionary. In each instance, the decision whether to grant relief will turn on the facts of the case.
(It is also worth noting in this context the specific comments made by Lord Carnwath in Walton v The Scottish Ministers [2012] UKSC 44, where he stressed that – in his view – the issue of discretion is closely linked to that of standing, and is important in maintaining the overall balance of public interest in appropriate cases. In other words, discretion is a necessary counterbalance to the widening of the rules of standing.)
As a matter of general principle, the court will always be hesitant to quash a decision where it is able to conclude that there is a real possibility that the decision maker would have come to the same conclusion, had he not erred in the manner that he did. Further factors can also come into play. Was the issue one of substance, rather than of procedure? Was the error of a purely technical nature? Has any party suffered significant prejudice?
In R (on the application of Lee Valley Regional Park Authority) v Broxbourne Borough Council [2015] EWHC 185 (Admin), the court concluded that the decision by the local planning authority to grant planning permission to the interested party for residential development on land in the green belt was flawed on a number of grounds, and fell to be quashed. The interested party contended that the claimant had failed to follow the pre-action protocol and that, in consequence, it had expended tens of thousands of pounds on necessary pre-development work that would be wasted, should the decision be quashed.
The court held this argument to be untenable, and quashed the decision. The proceedings had been commenced without delay. The expenditure was undertaken at a time when it was at the risk of the interested party. And the public interest in lawful planning decisions, especially so of this scale, prevented the early expenditure of money being a sound basis for the exercise of the discretion not to quash the decision.
John Martin is a planning law consultant
