Factual and Procedural Background
The Plaintiff, Company A, challenges two decisions of Company B, the local authority: first, the refusal on 15 December 2011 to reconsider its position on developing an approximately 800-hectare farmland site owned by Company B; and second, the Cabinet’s decision on 23 January 2012 affirming the exclusion of the site from the proposed Core Strategy for consultation, concluding the site was not available for development.
The site was acquired by Company B under statutory powers with the purpose of promoting comprehensive housing development. The Plaintiff retains a financial interest in the development proceeds if development occurs before 2050.
Company B holds the land under a 999-year lease, effectively making it the landowner, while also acting as local planning authority responsible for preparing the Core Strategy, a key component of the local development framework.
The Plaintiff contends that Company B unlawfully fettered its discretion by refusing to reconsider its development position, thus preventing the site’s allocation in the Core Strategy and frustrating the statutory purpose of the land acquisition.
The matter proceeded on an expedited basis with a rolled-up hearing for permission and the claim itself in March 2012. Earlier, a stay of the consultation process was refused, allowing consultation to proceed from February to March 2012, with the Core Strategy adoption and examination scheduled later in 2012.
Legal Issues Presented
- Whether the claim is excluded from judicial review jurisdiction by section 113 of the Planning and Compulsory Purchase Act 2004;
- Whether the decisions of 15 December 2011 and 23 January 2012 were lawful;
- If unlawful, what relief should be granted.
Arguments of the Parties
Appellant's Arguments
- The Council erroneously separated its functions as landowner and planning authority, treating the landowner role as distinct from itself, ignoring the statutory purpose of the land acquisition.
- The 2006 suspension of active promotion was temporary; by 2011 infrastructure issues had been resolved, justifying reconsideration of the site’s promotion.
- The site assessment excluding the site from the Core Strategy was based on a misconceived view that the site was unavailable due to the Council’s own decisions, contrary to government policy.
- The Council misapplied PPS3 by conflating active promotion with availability, rendering its decisions irrational and unlawful.
- The Council’s resolution in December 2011 failed to require timely reconsideration, which was necessary to allow the site’s proper consideration in the Core Strategy process.
- Both challenged decisions thwart the statutory purpose of the land acquisition, fetter discretion unlawfully, and are unreasonable.
Respondent's Arguments
- The Joint Development Partnership Agreement contemplated the possibility that the land might not be allocated or developed immediately; the Council acted consistently with that agreement and statutory duties.
- The separation between landowner and planning functions (the "Chinese wall") was appropriate and lawful.
- The Council had responded appropriately to prior planning inspector concerns and infrastructure constraints; the 2006 and subsequent decisions were reasonable.
- The Core Strategy preparation must proceed without undue delay; the Council’s site assessment methodology was properly applied, reflecting public consultation preferences.
- The Council’s position as landowner not actively promoting the site justified the exclusion of the site from the Core Strategy at that stage.
- The Council’s resolution to seek further information and not to reconsider promotion within the timescale proposed by the motion was reasonable and lawful.
- The general power of competence under the Localism Act 2011 supports the Council’s ability to act as a landowner similarly to a private owner.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Hinde v Rugby Borough Council [2011] EWHC 3684 (Admin) |
Interpretation of section 113 of the 2004 Act on timing and scope of challenges to development plan documents. |
Confirmed that challenges to development plan documents must be made within six weeks of adoption; section 113 must be strictly construed. |
| R v Cornwall County Council, ex parte Huntington and another [1994] 1 All ER 694 |
Limits on judicial review in the context of statutory planning processes and ouster provisions. |
Distinguished between challenges to final decisions and antecedent steps; confirmed that some preliminary decisions remain open to judicial review. |
| Smith v East Elloe RDC [1956] AC 736 |
Public bodies must exercise statutory discretion reasonably and for proper purposes. |
Reaffirmed principle that powers must be exercised consistent with statutory objects. |
| Porter v Magill [2002] 2 AC 357 |
Statutory powers must be used as Parliament intended. |
Applied to assess whether the Council misused its powers in refusing to reconsider development promotion. |
| R v Secretary of State for the Home Department, ex parte Venables [1998] AC 407 |
Public authorities may not fetter future discretion. |
Supported finding that the Council unlawfully fettered its discretion by refusing to reconsider. |
| R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 AC 513 |
Unlawful fettering of discretion by misinterpretation or wrong question. |
Demonstrated that the Council’s refusal to reconsider was a fetter on discretion. |
| Stovin v Wise [1996] AC 923 |
Duty of public authorities to consider whether to exercise statutory powers. |
Applied to show the Council’s failure to consider promotion was unlawful. |
| Birkdale District Electric Supply Co v Southport Corporation [1926] AC 355 |
Public bodies must not act incompatibly with statutory powers. |
Supported the view that the Council’s decisions were incompatible with its statutory duties. |
| Bromley LBC v Greater London Council [1983] AC 768 |
Fiduciary duty to taxpayers to use resources advantageously. |
Reinforced the Council’s obligation to act in the public interest in managing the land. |
| Padfield v Minister of Agriculture Fisheries and Food [1968] AC 997 |
Decisions must promote, not frustrate, statutory policy objectives. |
Central to the court’s conclusion that the Council’s decisions frustrated the statutory purpose of land acquisition. |
| R v Braintree District Council, ex parte Halls (2000) 80 P&CR 266 |
Application of Padfield principle to planning authorities. |
Confirmed the need to assess decision-maker’s purpose in exercising powers. |
| R v Somerset County Council, ex parte Fewings [1995] 1 WLR 1037 |
Public bodies’ landowner powers must align with statutory purposes. |
Supported the principle that the Council’s landowner role is bound by statutory objectives. |
| Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 |
Standard of irrationality in public law decision-making. |
Applied to assess irrationality in the Council’s decisions. |
| Haringey LBC v Secretary of State [2008] EWHC 2101 |
Material mistake of fact as grounds for judicial review. |
Used to identify the Council’s error in fact regarding site availability. |
| Gransden v Secretary of State for the Environment (1987) 54 P&CR 86 |
Requirement to correctly understand and apply policy. |
Supported finding that the Council misapplied PPS3 policy. |
| Carpets of Worth Ltd v Wyre Forest District Council (1991) 62 P&CR 334 |
Requirement to give cogent reasons when departing from policy. |
Emphasized the Council’s failure to provide proper reasoning for its decisions. |
| Tesco Stores Ltd. v Dundee City Council [2012] UKSC 13 |
Objective interpretation of policy statements. |
Applied to assess the Council’s understanding of PPS3 and PPS12. |
Court's Reasoning and Analysis
The Court examined the statutory framework under the Town and Country Planning Act 1990 and the Planning and Compulsory Purchase Act 2004, focusing on the Council’s dual roles as landowner and local planning authority. The land was acquired under section 227 and section 226(1)(b) of the 1990 Act for the necessary purpose of proper planning and housing development, a purpose that endures.
The Council’s creation of a "Chinese wall" separating landowner and planning functions did not alter the fundamental statutory purpose of the land acquisition. The 2006 decision to suspend active promotion of the site was temporary and predicated on resolving infrastructure constraints, which by 2011 had been addressed sufficiently to warrant reconsideration.
The Court distinguished between a site’s active promotion and its availability. The Council conflated these concepts, wrongly treating the site as unavailable because it was not being actively promoted. Government policy in PPS3 requires that availability be assessed independently of promotion. The Council’s decisions and site assessments misapplied this policy, rendering the decisions irrational and unlawful.
The Court found that the Council’s refusal to reconsider its position in December 2011 fettered its discretion unlawfully and was inconsistent with the statutory purpose of the land acquisition, violating the principle in Padfield. The Cabinet’s decision in January 2012 perpetuated these errors, relying on a mistaken fact and failing to apply policy correctly.
The Court rejected the Council’s reliance on the Localism Act 2011’s general power of competence as irrelevant to decisions made prior to its commencement.
Finally, the Court held that the claim was not excluded from judicial review by section 113 of the 2004 Act, as the challenged decisions were antecedent to the adoption of the Core Strategy and not challenges to the document itself.
Holding and Implications
The Court granted permission to apply for judicial review and held that the claim succeeds.
The decisions of 15 December 2011 and 23 January 2012 are unlawful.
The Court ordered that the Council must reconsider, within a reasonable time, its position on the promotion of the site as landowner and reconsider the form of the pre-submission Core Strategy as local planning authority. The relief granted aims to ensure the Council does not prejudice the Core Strategy process, but does not compel any particular outcome regarding the site’s allocation.
The decision directly affects the parties by requiring reconsideration of the challenged decisions and the Council’s approach to the site. No new precedent beyond the application of established principles of public law and planning statute was established.