On 22 September 2024 the Ministry of Housing,  Communities & Local Government has. Published a Policy Paper, “ Brownfield Passport : Making the Most of Urban Land “, inviting views on action that could be taken through the planning system to support the development of brownfield land in urban areas. It proposes options for a form of BROWNFIELD PASSPORT, which would be more specific about the development that should be regarded as acceptable.  T he default answer to suitable proposals would be a straightforward : “ Yes “.

The proposals relate to the principle, the scale, and the form of development, and to the potential wider use of LOCAL DEVELOPMENT ORDERS. These would grant area-wide permissions.

A series of questions are posed.

In R ( FRIENDS OF WEST OXFORDSHIRE COTSWOLDS ) v WEST OXFORDSHIRE DC ( 2024 ) EWHC 2291 ( Admin ) there are applied the GENERAL PRINCIPLE ( BODDINGTON ) that, once pronounced unlawful by a Court, an administrative act is recognized as never having had legal effect, and the GENERAL PRINCIPLE ( WHITLEY ) that where operations do not comply with a planning permission , read together with its conditions, they would be unauthorised and unlawful. The Court states the conditions for the latter principle to apply.

R (HALTON BC) v SoS (2024) EWHC 2030 (Admin) involved a costs order made against the local planning authority pursuant to Section 250 in the Local Government Act 1972 after its expert witness failed to come up to proof during cross-examination at a called-in public inquiry resulting in the inquiry process being aborted.  Fordham J set out the following key points from the judicial review case law:-

1. The judicial review Court could intervene in the exercise of its supervisory jurisdiction where the costs decision-maker had materially misdirected themselves, or the decision was unreasonable in a public law sense;
2. Clear and intelligible reasons had to be given for the decision;
3. The decision letter had to be read straightforwardly and as a whole;
4. The decision as to costs involved a wide statutory power vested in the costs decision-maker: decision was not unreasonable because a different decision-maker might have taken a different view, or because there was room for significant disagreement;
5. There was a clear distinction between interpretation of policy (appropriate for judicial analysis on an objective correctness standard) and application of policy (an exercise of judgment for the primary decision-maker subject to a reasonableness standard);
6. Public law unreasonableness meant that the decision was outside the range of reasonable decisions open to the decision-maker, or there was a demonstrable flaw in their reasoning;
7. The Courts should respect the expertise of specialist planning decision-makers;
8. A decision-maker could depart from policy guidance if clear reasons were given;
9. The reasons had to be intelligible and adequate: Decision Letters should be read in a straightforward manner recognising that they were addressed to parties well aware of the issues involved and arguments advanced: their conclusions should not be laboriously directed in an effort to find fault.

EIAs are not on obstacle course for decision-makers. The purpose of an EIA is to improve environmental decision-making. The significance of an impact for assessment purposes is not legally distinct from that for determination purposes. So held in R ( Boswell ) v SoS ( 2024 ) EWHC 2128 ( Admin ).

Environmental judicial review cases can attract a closer intensity of reasonableness review. There is however no rigid test for a uniformly heightened scrutiny. So held in R ( Fighting Dirty ) v Environment Agency ( 2024 ) EWHC 2029 ( Admin ).