March 28th, 2024 by James Goudie KC

The question in R (SUFFOLK ENERGY SOLUTIONS) v SoS FOR ENERGY (2024) EWCA Civ 277 was whether the SoS acted unlawfully in dealing with a complaint by Suffolk Energy Solutions that the interested parties had “stifled” or “neutralised” the ability of landowners failing possible compulsory purchase to prevent objections to and information about a scheme of which development consent was being sought.  The issue was whether the use of “non-objections clauses” in a planning contract was legitimate.  The judicial review failed.

The Court of Appeal said, at paragraph 59:-

“…that no one can be required to give false evidence to a planning inspector or examiner.  But the question in issue is whether a party who has sold or is proposing to sell an interest in land may agree contractual obligations not to object to the grant of planning permission.”

The Court of Appeal continued:-

“61.     In our judgment, the use of non-objection clauses when a party has obtained an interest in land, or an interest in land conditional on the grant of planning permission, is permissible for two main reasons.  First, an applicant who owns land and seeks planning permission for a relevant use of that land is unlikely to object to that application.  That fact has not of itself been considered to undermine the integrity of the process for the granting of planning permission.

62. Secondly (and part of the reason why the integrity of the process for planning permission is not undermined by the fact that applicants owning land are unlikely to object to their own scheme), the planning process is inquisitorial in nature. The inquisitorial nature of the process means that it is for the decision-maker to ensure that there is sufficient information to enable an informed and lawful decision to be made on the application for planning permission … whether the effect of a non-objection clause has in fact meant that there is insufficient information to enable a planning decision to be made, or “impermissibly distorted the picture” … must always be a fact-specific inquiry.

63. …the environmental impact of a scheme which is an EIA development is addressed by the EIA Regulations.  The inquisitorial nature of the process, and the relevant statutory provisions, mean that in general, the non-objection and confidentiality clauses should not prevent the decision-maker from becoming aware of all the relevant planning and environmental considerations.  Of course, whether this is so in any individual case will always depend on the particular facts.

64. We do not consider that the answer is altered in circumstances where a developer is acquiring an interest in land, and that land, together with other land, forms part of the scheme and the non-objection clause applies to the scheme as a whole. There is only one scheme, and the developer is entitled to require a person whose land is being acquired not to object to the scheme, even if the scheme involves other land. This is for the two main reasons set out in paragraphs 61 and 62 above, though – as we have said – the fact-specific nature of the decision must always be kept in mind …”

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