Planning Decision

May 25th, 2022

In R (Goesa) Ltd v Eastleigh BC (2022) EWHC 1221 (Admin) Holgate J. sets out the statutory framework in relation to a grant of planning permission as follows:-

(1) A mere resolution to grant planning permission by a LPA does not itself constitute a planning permission for the purposes of Sections 58(1)(b) and 70(1)(a) of the TCPA 1990.

(2) Planning permission is not granted until a decision notice is given to the applicant;

(3) It follows that the LPA is free to revisit its resolution to grant planning permission and to change its mind about the terms of the permission, or even to revoke that resolution, at any time before the decision notice is issues, the LPA may become under a legal obligation to reconsider its resolution to grant;

(5) The same principles apply where a LPA passes a resolution to grant permission subject to the prior execution of a Section 106 obligation to secure specified objectives: it may often be necessary for the terms of an obligation to be negotiated and drafted in some detail after the passing of that resolution;

(6) If no such obligation is entered into in accordance with the terms of the resolution, it would be unlawful for the LPA to proceed to grant planning permission unless the authority resolved to alter those terms appropriately;

(7) Where an application is made for planning permission, it is submitted to, and is generally determined by, the LPA;

(8) However, Section 77 gives the SoS a broad discretion to issue directions requiring a specific application for planning permission (or applications more generally) to be referred to him instead of being dealt with by the LPA;

(9) This power of call-in may be exercised before or after the LPA has resolved to grant planning permission, but cannot be exercised once a LPA has granted planning permission by issuing a decision notice;

(10) This interregnum between a resolution to grant permission and the issuing of a decision notice once any necessary Section 106 obligation has been executed, provides a further opportunity during which the SoS may exercise his power to call in the planning application for determination by himself;

(11) The long established policy is that most applications should be dealt with at local level, so that the default position, departed from only rarely in practice, is not to call in applications;

(12) The SoS may exercise the power of a call-in of his own motion;

(13) The SoS has an additional power, namely to issue a direction restricting the grant of planning permission by a LPA, either indefinitely or for a specified period;

(14) The SoS has no common law obligation to give reasons in relation to a decision on whether or not to exercise discretion;

(15) A third party may also ask the SoS to consider exercising his power to call in an application;

(16) However, an informal request of that nature is not to be treated as a formal application which has to be determined by the SoS. It is a procedural decision as to who should deal with the planning application, the LPA or the SoS;

(17) The SoS is under no general common law duty to give reasons for a decision on whether or not to call in an application.

Holgate J. sets out the legal principles on legitimate expectation as follows:-

(1) A claim to a legitimate expectation can be based upon a promise (or representation) made by a public authority provided that the promise was “clear”, unambiguous and devoid of relevant qualification;

(2) If the promise (or representation) was not made directly to the claimant, then the claimant should show that he fell within a class of persons entitled to rely upon it, or that it was reasonable for him to RELY upon it without more;

(3) The Courts will not give effect to a legitimate expectation if it would require a public authority to act contrary to the terms of legislation;

(4) Similarly, a promise by a public body cannot amount to a legitimate expectation if that body has no power to do that which it has promised.

As regards whether the alleged legitimate expectation would be inconsistent with the statutory code, Holgate J. said:-

(1) The starting point analysis is that planning legislation is generally regarded as creating a comprehensive code;

(2) As the LPA, the defendant had a statutory obligation to determine the application unless and until the SoS issued an Article 31 direction or made a decision under Section 77 to call in the application;

(3) Where the SoS issues a direction under Section 77(1) that an application be referred to him for determination, the LPA must refer that application to him;

(4) The LPA cannot of its own motion transfer an application for planning permission to the SoS because, for example, it considers that the matter should be determined by the central planning authority;

(5) A LPA is obliged to determine a validly made application, either by granting it (with or without conditions) or by refusing it, unless it exercises one of the powers to decline to determine an application;

(6) The LPA is under an obligation to issue a decision notice, or a notice that the application has been referred to the SoS under Section 77, within the time limits specified;

(7) An applicant’s remedy for non-compliance with that time limit (or any extension thereof agreed in writing) is to appeal against a deemed refusal of planning permission;

(8) If no appeal is brought within the relevant time limit, it is to be noted that the LPA’s duty to determine the application still continues;

(9) Once a LPA passes a resolution to grant planning permission, and any pre-conditions in that resolution for the grant of permission are met, the authority has no function left to perform other than to issue the decision notice, unless the SoS requires the authority to refer the matter to him for determination.  The TCPA 1990n does not confer any express power upon a LPA to defer issuing the decision notice to enable the SoS to consider calling in the application;

(10) A local authority has a power under Section 111 of the Local Government Act 1992 to do anything which is “incidental” to the discharge of any of its functions, but that does not include doing something which is merely “incidental”;

(11) Where a LPA chooses to reconsider the merits of its earlier decision, or decides to revisit an application because of a material change in circumstances, or a new consideration arises which was not previously taken into account, the authority delays the issuing of a decision notice as part of a continuing process of determining the merits of the application for itself, which, of course, is the authority’s function;

(12) But when a LPA purports to agree with the SoS to defer issuing a decision notice for a significant period of time, simply so that he may consider whether to call in the application it does not such thing: the only purpose is to enable the Minister to decide whether he will determine the merits of the application, and by definition, the LPA is not continuing to determine those merits for itself, and the function of making the procedural decision the application should be called in belongs exclusively to the SoS, and the LPA has no role to play in the making of that decision;

(14) A public authority cannot enter into any undertaking or agreement incompatible with the due exercise of its duties;

(15) An agreement by a LPA to defer issuing a decision for a short period which could be considered de minimis would be a different matter;

(16) The General Power of Competence in Section 9.1 of the Localism Act 2011, could not overcome this incompatibility with the LPA’s duty to determine the application;

(17) Planning legislation does provide a solution for a situation where the SoS wishes to prevent a LPA from granting planning permission while he considers whether to call in the application;

(18) He has a broad power to issue an Ar4ticle 31 Direction;

(19) It is a transparent and public procedure;

(20) The use of that simple procedure avoids the uncertainty which can arise over the meaning and effect of exchanges of emails and letters, whether they give rise to any binding legitimate expectation and, if so, the nature of that expectation;

(21) It hardly seems desirable for the interests of an application, the LPA and potentially other public bodies and many members of the public, whether for or against the proposal, to be affected by such legal uncertainty;

(22) An Article 31 Direction can be issued rapidly where that is thought to be appropriate.

As Holgate J. observed, from para 76, the claimant’s reliance upon legitimate expectation also faced further difficulties, because the doctrine of legitimate expectation is rooted in fairness, and fairness is not a one-way street. It imports the notion of equitableness, of fair and open dealing, to which the authority is as much entitled as the citizen.  In this case, there were different types of interest to consider.

Any promise given by the defendant as LPA was given to another public body, the SoS, for the sole purpose of enabling him to consider whether to call in the application. Any such promise simply related to the procedure for the determination of the application, not its merits.  Parliament has decided not to give those who oppose a proposal a right of appeal against a LPA’s decision to grant planning permission. The SoS’s power of call-in is not to be treated as akin to an appeal process. In any event, there is also the expectation of the party who applied for planning permission of obtaining a formal consent given effect to the LPA’s determination of his planning application.

Even if fairness is considered more broadly by looking beyond the strictly procedural aspect, there are a very wide range of competing interests in play.  A proposal of the present kind will attract a wide range of representations, from different local authorities with different responsibilities, other public bodies and statutory consultees, and members of the public. A spectrum of representations will have been submitted by many parties, which will include the views of both those who support and those who object to the proposal, such as views about policy, harm to residential amenity and the environment, and employment and socio-economic benefits. Quite apart from those who participate in the process by making representations, whether for or against, there is the “unrepresented” general public as a whole. The public has an interest in planning control being exercised through the determination of the application, having regard to relevant planning considerations, whether to protect the environment against harm or to promote the benefits of the proposal. Parliament has entrusted the determination of planning applications in the public interest, and the resolution of those competing interests, to a LPA operating at a local level, subject exceptionally to the call-in procedure.

There is no such thing as a technical breach of the rules of natural justice or fairness. Generally, it must be shown that a claimant has suffered substantial prejudice because of the unfairness.

In the area of predictive assessment it is entirely a matter of judgment for the decision-maker as to how far to go in assembling information for making its decision, that lines of enquiry to pursue, and how far to go in any such enquiry.

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