Planners acted rationally and police had no legitimate expectations for housing Section 106 contribution consultation

Earlier I mentioned that in Police and Crime Commissioner v Blaby District Council (2014) the PCC had taken judicial review proceedings over a planning permission for 4,250-homes.

They had contended that the development would increase the requirement for policing in that area.

The council and developer had agreed that a financial contribution should be made towards policing in Leicestershire, but the planning agreement had postponed the funding for some time. Nor did the agreement contain any definite obligation to contribute towards the buildings needing expansion to accommodate the extra officers and staff required to both maintain current levels of policing elsewhere in the area and police the development.

The challenge has now been rejected by the High Court which also refused leave to appeal to the Court of Appeal. A reduced time was allowed for the PCC to seek leave from the Court of Appeal itself.

The main grounds for the failure were that:

There was no evidence of “irrationality” on the part of the Council Planning Committee.

The court accepted that public opinion might be concerned that the developer contributions to policing were insufficient but that did not make for a strong enough argument to surmount the very high threshold for establishing “irrationality” in the sense required for the challenge to be successful.

The evidence did suggest that the Council had considered the matter properly and had reached a rational and sustainable conclusion even if it was not one with which everyone would agree.

The court also dismissed the argument that the police had a “legitimate expectation” that the Council would consult them on the level of, and timing of the delivery of, the contribution, and that the outcome of those discussions would be represented in the agreement.

A course of dealing between two parties, in that kind of context, could in some circumstances give rise to a “legitimate expectation” that a particular process would be followed by a public authority before a decision was taken.

But here no unequivocal representation was made by the Council that could have created an expectation in the police that they would be consulted about those levels and timings.

However, the Council was clearly aware of the PCC’s view on the timing of the premises contribution. The equipment contribution was also discussed. The police could have given “chapter and verse” on that if they had chosen to do so before the final discussions between the Council and the developers.

But there was no basis for implying any specific obligation on the Council’s part to inquire about that.

This blog has been posted as a matter of general interest. It does not remove need to get bespoke legal advice in individual cases.