Hypothetical arguments and the Planning Court

Two recent Planning Court decisions have re-examined the extent to which the Planning Court is prepared to become involved in claims which raise purely “academic” arguments.

Background

It was a common feature of Tewkesbury BC v SoS for CHLG and others CO/406/2019 (in which Shoosmiths acted for the second interested party), and Oxford City Council v SoS for CHLG and others CO/382/2019 that both claimant councils had been successful in resisting Section 78 planning appeals against their respective decisions to refuse planning permission.

However, Tewkesbury BC (“TBC”), subsequently sought a judicial review of that part of the planning Inspector’s decision which dealt with his analysis of TBC’s five year HLS. It sought a declaration from the court that the Inspector’s calculation was wrong as it failed to take into account oversupply of the annual housing target in previous years.

In the Oxford City Council (“OCC”), case, a judicial review claim brought by OCC focussed on that part of the planning inspector’s decision which concluded that the proposed scheme did not have to provide any element of affordable housing.

As each respective council had effectively succeeded in securing dismissal of the planning appeals, they were unable to take any legal challenge by way of the normal statutory route (Section 288 of the TCPA 1990), as they were not “persons aggrieved” for these purposes.

The legal challenge route open to them therefore was to seek a judicial review of that part of their respective Inspector’s decision letters with which they were unhappy. In effect TBC requested a declaration from the court which identified the Inspector had erred in law. OCC sought permission to proceed with their claim. The purpose of the TBC claim was to allow TBC to rely on that declaration (and in OCC’s case on any subsequent favourable decision of the court), in any subsequent planning application determination or appeal process involving the same or other land.

Each claim was issued separately and at different times. However, both were subsequently dealt with by Mr Justice Dove. He issued separate written judgments on both cases on the same day (8 July), with Dove J cross referring to the common issues in the respective judgments.

The Planning Court's decision

It was argued on behalf of the SoS in both cases that as both councils had successfully resisted the original appeals, these claims were now “academic”.

While the SoS did accept that the court had jurisdiction to consider purely academic claims, this would only arise in truly “exceptional circumstances”.

In considering if the “exceptional circumstances” test was engaged, Dove J concluded that this required an examination of all of the circumstances in which the case arises and particularly the nature and context of appeal decisions.

In his conclusions in the OCC case Dove J stated:

“…A claim was brought in very similar circumstances in the recent case of Tewkesbury Borough Council v Secretary of State for Communities Housing and Local Government and Others (C0/406 2019). For all of the reasons which are expressed in…that judgment, which are of application to the present case, I am entirely satisfied that in the present case it would not be appropriate for the court to exercise jurisdiction in this claim. Whilst such a jurisdiction may exist in respect of hypothetical cases I do not consider, for the reasons given in the Tewkesbury case, that this case is one of the exceptional cases in which jurisdiction should be deployed”.

The claimants were also unable to get over the high hurdle which is Section 31 of the Senior Courts Act 1981. This provides (in terms), that unless the outcome of any judicial review would lead to a substantially different decision being made, the court must refuse the claim.

Dove J dismissed both claims stating that these raised unarguable academic issues where no exceptional circumstances existed to justify interference from the court.

Commentary

The above cases have re-inforced the Planning Court’s message to planning practioners that it will not exercise jurisdiction or discretion in favour of purely academic claims unless a claimant can truly demonstrate that exceptional circumstances exist.

As indicated in the judgments, this is a high bar and one which will not be overcome lightly. The fact-specific nature of each case is obviously a relevant factor here, but it seems it will not be enough to argue solely that a particular argument raises issues of local or national importance or application.

Indeed, In considering if the “exceptional circumstances” test was engaged, Dove J concluded that this required an examination of all of the circumstances in which the case arises and particularly the nature and context of appeal decisions.

Critical to both judgments is the fact that appeal decisions are not binding precedents. It is a common feature of the appeal process that disputes arising over the application of planning policy are resolved by planning inspectors. In many cases, that involves an exercise of “planning judgment” with which the court will not interfere.

In addition, Dove J re-emphasised the role of the Section 78 Appeal process in that issues such as those arising in both cases can be re-investigated in subsequent appeals without any intervention by the court in that process. (See also the Supreme Court’s decision in Hopkins Homes v Secretary of State [2017] UKSC 37).