Planning Speed Read — 24 January 2025

This week’s planning speed read examines Judicial Reform, overcharging on education contributions, breach of conditions and Facebook groups

Talk of Judicial Reform. Again.

 It seems like only yesterday that Boris Johnson was talking about reforms to let ministers throw out Judicial Review (JR) rulings they disagreed with. Back then the Tory government were focussed on triggering Brexit and the prorogation of parliament. By contrast, the current government’s aims, though not entirely problem free, are perhaps less controversial and are tied to their promise to “take the brakes of Britain”.

Opponents to a scheme on mounting a JR need to initially satisfy the court that they are an aggrieved person withstanding in a matter and are able to mount an arguable case. This “permission stage” of the proceedings is usually considered on the papers and if thrown out, their case can then be heard again at a renewal hearing in front of a Judge. Ultimately, if the claimants do not get satisfaction form a sitting judge the claimants can take their case for permission to be granted to the Court of Appeal and so in actual fact objectors to a scheme can have up to 3 attempts to satisfy the court in relation to what should be a relatively straightforward matter – do they have an arguable case?

The proposals Kier Starmer has announced in recent days are to simplify the process, doing away with permission being heard on the papers altogether so that the permission stage can only be heard at an oral hearing. In cases where the Court come to a finding that the proceedings being brought are “totally without merit” it is further proposed that the claimants will be unable to take their case to the Court of Appeal.

There are a number of potential problems with the reform:

• It is intended that it will only apply in respect of DCOs (consenting decisions for nationally significant infrastructure projects,) and therefore will not apply universally. There remains a broad category of major projects that for example unlocking housing, and other significant commercial investment, which do not come within the fold of DCOs, yet which are still blighted by unrelenting, sometimes vexatious, and hopeless claims for judicial review. These problems and threats to much needed investment and economic growth will not be addressed by the proposals;
• One does wonder if by obliging all such matters to now be listed for an oral hearing, if in fact this will bog the court system down to deal with a greater share of vexatious claims than is currently the case given that under the present arrangements a proportion of them are clearly dispensed within the papers without further appeal or review, and finally,
• Will blocking a route to the Court of Appeal lead to problems of accountability and a lack of scrutiny? There have been many recent examples of high-profile environmental campaigns against schemes which were only granted permission to proceed by recourse to the Court of Appeal (for example the Supreme Court decision in Finch). What could the proposals mean for such claims in the future?

Planning committee member failed to declare Facebook group membership when voting against a housing application.

A Conservative councillor should not have voted in a planning committee on whether to refuse permission for new homes in his ward because his membership of Protect Hurst Action Group on Facebook, indicated that he ‘pre-determined’ the matter.

Wokingham Borough Council’s planning committee refused an application for 23 homes and parking for a local primary school in the borough’s Hurst ward by just one vote, against officer recommendation, on 14 February 2024. Whilst the councillor made a declaration of interest in this application, he did not mention the nature of the ‘interest’ declared. This was his opposition to the application at the parish council and he did not state his membership of the Facebook group.

Since reviewing the matter, the Standards committee recommends training for all councillors on registration relating to membership of local campaigns, Facebook groups and other social media.

The case demonstrates the dangers of two things:

1. That the declaration of an interest in and of itself is only part of the story. Declaring the interest did not of itself cleanse the decision-making process of the appearance of predetermination.
2. The dangers of how pervasive the membership of online social media groups can be and how those memberships can lead to difficulties when it comes to discharging a role in public office.

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Take Me There

An Inspector has allowed a 375 home greenfield scheme as a Council was overcharging the developer by £1.7 million for an education contribution.

After Forest of Dean District Council failed to determine a planning application within the prescribed time period, the developer appealed the decision which led to an inspector enquiring as to whether the primary education contribution sought by Gloucester County Council was ‘necessary and reasonable’.

The County Council asked for a financial contribution of £2,711,585.25 towards the provision of 112.5 primary school places in the S106 Agreement. However, the appellant argued that only a contribution of £201,282.71 to fund 8.4 additional places was ‘reasonable and necessary’. The debate around the difference in the contribution figure circulated around calculations that were made namely regarding the housing market, migration, and past cohort progression.

The inspector found that the developer should in fact be required to fund 40.82 places. Therefore, a contribution of £983,883.64 would be “reasonably necessary to mitigate the impact of the proposed development on primary education infrastructure”. This is £1,727,701.61 less than initially set out by the Council. The case re-asserts the importance of ensuring both sides (developer and enforcing authorities) go into an appeal armed with a sound evidence basis on which to support their case in respect of what should comprise a lawful and enforceable planning obligation. For some time now, the CIL Regulations 2010 have stipulated that in order for a planning obligation to comprise a reason for granting planning permission for a development the obligation has to be necessary, directly, fairly and reasonably related in scale and kind to the proposal.

For more information, please click here.

Breach of condition notice served to Elmswell Services.

The Council were concerned that the exit to a petrol station site would have a ‘severe and detrimental impact on highway safety’. The site was granted planning permission on appeal and opened in December, but Mid Suffolk Council said its previous concerns had not been addressed. The notice stated that the work on the access and exit points – as set out in the Planning Inspectorate’s conditions of approval – were not carried out before opening.

“EG On the Move”, owner of the premises, may face prosecution if it does not make the relevant changes within three months.

In respect of the same permission, the enforcing authority also issued an enforcement notice relating to the failure to obtain two construction management plans. An enforcement notice could also have been served in relation to the access arrangements but the advantage to the authority of issuing a breach of condition notice is that it offered no right of appeal to the owner of the site. Clearly the Council had serious concerns that the site’s layout could lead to potential collisions and wider safety concerns.

For more information, please click here.