Planning authority’s multiple roles did not mean application was predetermined

Local planning authorities deciding a planning application may have more than one statutory role meaning that they are actually engaged in the project themselves in one or more different capacities.

Given the inevitability of this the courts are at ease with that multiple engagement so long as the local authority in its capacity as local planning authority (“LPA”) exercises its discretion genuinely and impartially.

In the High Court case of R (on the application of Khan) v London Borough of Sutton (2014), recently mentioned on this blog in another context, the LPA was also the waste disposal authority for the district.

In that latter capacity it had contracted with the “interested party” of the litigation for the interested party to provide a waste incinerator. In its capacity as the LPA, for the district, it then granted the interested party planning permission for it.

The claimant argued that the planning decision was not the result of planning considerations but was led by commercial considerations instead. These included the need to meet the targets set within the waste disposal contract which had meant that the LPA had not assessed the planning application “with an open mind”.

However the court said:

1. The council’s dual role as local planning authority and as waste disposal authority was authorised and required by Parliament under section 1(2) of the Town and Country Planning Act 1990.

2. The claimant had been merely inferring that the council’s discretion was inevitably fettered because permission was granted after the waste contract had been procured. Actually the claimant had failed to demonstrate a single act showing that the council’s discretion to decide the planning application had been fettered. In fact the council had throughout been sensitive to the potential for challenge on that ground and had taken all measures needed to make sure that their decision could not be challenged on that ground.

Additionally the court found evidence that:

1. The council were aware of the need to demonstrate openness and accountability in the council’s decision making process. That process was structured to ensure that it had and maintained a clear separation of its functions. The council had a differently constituted scrutiny committee which was able to hold the main committees including the development control committee to account. In this case the scrutiny committee had reported on the waste incinerator contract and given suggestions as to the way in which the planning application ought to be dealt with.

2. The planning performance agreement (“PPA”) the council had made with the interested party included, at paragraph 1.3, the statement that:

“Nothing in this agreement shall predetermine or prejudice the proper consideration or determination of any consent or application or override or fetter the statutory powers, duties or responsibility of any party”

thereby clarifying that by entering into the PPA the council was not fettering itself in its role as the statutory planning authority for the district.

So the court eventually dismissed the claimant’s challenge on predetermination of the application by the LPA as “quite hopeless”.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.