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Judges in their own cause

Ian Graves sets out the lessons learned for local authorities when granting planning permission on their own land.

Three recent cases have highlighted the potential pitfalls in store for local authorities when dealing with planning applications relating to land in which they have an interest.

In R (Felicity Irving) v Mid Sussex District Council [2019] EWHC 3406 (Admin), the Council granted itself permission for a single large dwelling house on land it owned in Cuckfield, Sussex. The council’s proposals to develop the site had been contentious with the local community over a number of years. Residents of Cuckfield maintained that they had used the site for recreational purposes from around 1938 until the council prevented access to it in 2013. The site was in a conservation area and so subject to the statutory presumption in section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 that special attention will be paid to the desirability of preserving or enhancing its character or appearance.

This was not the first time that the council had attempted to grant planning permission for development of the site. In 2014 and 2015 grants of planning permission were quashed by the High Court, the first by consent and the second after a hearing before Gilbart J. In the second case, Gilbart J had been highly critical of the council’s finding that the benefits accruing from the construction of a single dwelling were sufficient to outweigh the harm that would be caused to the conservation area by the development.

The most recent permission was also quashed, this time by Lang J. The permission was held to be unlawful on a number of grounds, but the most notable of these was the ‘unjustified and unlawful’ inconsistency in the way that the council had treated the benefits arising from a single dwelling house on its own site when compared with other similar applications.

In a cutting section of her judgment, Lang J noted that there was a ‘striking difference’ in the council’s approach to this issue when it had an interest in the outcome of the application. On other sites, the benefits of a single house were held to be ‘limited’, whereas the council deemed there to be ‘clear economic benefits’ from its own scheme. Lang J found that this inconsistency of approach was unlawful.

This is a powerful reminder to councils of the need for scrupulous fairness when dealing with their own planning applications, despite the understandable sympathy that officers and councillors may have for the organisation’s own proposals.

The case of R (Risby) v East Hertfordshire District Council [2019] EWHC 3474 raised similar issues. The development in question was larger, being a multi-storey car park, public realm and highway works, and a mixed-use commercial and residential building. Again, the development was in a conservation area and the site was owned by the local authority. A previous permission for an almost identical scheme had been quashed by consent in early 2019 because the council accepted that its decision did not address the section 72 presumption discussed earlier.

The council’s second grant of permission was attacked by the claimant in Risby for again failing to deal adequately with the issue of harm to the conservation area. In its decision on the first application, the council had found that some harm would be caused, although this would be outweighed by the benefits of the development. In its second decision, the council determined that no harm would be caused to the conservation area. The claimant argued that this approach was inconsistent and unlawful, and that the council had failed to deal adequately with the issue of impact on the conservation area.

Rhodri Price Lewis QC held that, although the council’s previous decision on harm to the conservation area was a material consideration, it had taken it into account and had otherwise dealt satisfactorily with the issue of harm. Crucially, the applicant for planning permission had submitted with the second application a detailed heritage report that provided a sound basis for the finding of no harm, and which the council relied upon in its decision. The claim was therefore dismissed.

Finally, in another decision of Lang J, R (Day) v Shropshire Council [2019] EWHC 3539 dealt with a complicated issue around whether a site sold to a commercial developer by Shrewsbury Town Council remained part of the Greenfields Recreation Ground and so was held as open space for public use under a statutory trust.

The site had been sold by the town council to a private sector developer in 2017 and Shropshire Council, the local planning authority, granted permission for a development of 15 dwellings in November 2018. The claimant argued that the grant of permission was unlawful as Shropshire Council had failed properly to consider the existence of the statutory trust.

Lang J carefully considered the history of the site and concluded that it had indeed been held by the town council on a statutory trust for the benefit of the residents of the local area. She therefore held that Shropshire Council’s grant of planning permission had been unlawful for failing to take this obvious material consideration into account. However, the judge declined to quash the permission since the relevant provisions of the Local Government Act 1972 meant that the rights under the statutory trust could not have been enforced against the current owner, and so the outcome of the application would have been substantially the same if the council had dealt with the matter properly.

All three cases show that local planning authorities must take particular care when dealing with applications where they have some interest in the outcome. Land that has at some point been held by a local authority is, by its very nature, more likely to have performed some public function in the past, and hence development of it may be more contentious than usual.

Well organised local interest groups will be prepared to challenge council decisions where they believe them to be flawed, potentially causing significant delay. It is notable that the first two cases were judicially reviewed on multiple occasions. All of the judgments show that the courts are prepared to undertake detailed scrutiny of both the factual basis of planning judgments and consistency with previous decisions. The courts are likely to intervene where it appears that a council has unfairly judged development in which it has an interest by a different standard to that proposed by third parties.

The Risby case does offer some comfort to local authorities, as it demonstrates that a carefully drafted and well-reasoned officer’s report can be sufficient to protect decisions from challenge. Provided the authority has taken all material considerations into account and can explain clearly why it has reached the conclusions it has, the courts will not trespass in areas of planning judgment.

Although making no new law, these cases offer examples of the issues awaiting local authorities when acting as judges in their own cause, and give useful pointers as to how those issues should be dealt with.

Ian Graves is a Legal Director in DLA Piper’s planning team.