Key Facts
- •Enterprise Hangars Ltd applied for planning permission to build nine live/work hangar buildings at Solent Airport.
- •Fareham Borough Council (defendant) refused access for a necessary badger survey, citing its position as landowner and incompatibility with its 'Daedalus Vision'.
- •The lack of a badger survey was a reason for the planning permission refusal.
- •The claimant argued the council's refusal to grant access was unlawful, fettering its discretion as planning authority.
- •The council's 'Daedalus Vision' prioritized specific types of development, influencing its decision on the application.
- •The claimant argued procedural unfairness as the council conducted its own site survey to counter claimant's evidence.
Legal Principles
A planning authority cannot exercise its landowner rights if this inhibits its ability to decide planning applications according to law.
Town and Country Planning Act 1990, Section 70(2)
Developers should not be required to undertake protected species surveys unless there is a reasonable likelihood of the species being present.
ODPM Government Circular 06/2005, Paragraphs 123, 124, 99
Principles of natural justice apply to planning processes; a party must have a 'fair crack of the whip' to know the case it has to meet and have a reasonable opportunity to adduce evidence.
Spitfire Bespoke Homes Ltd v SSCLG [2020] EWHC 958 (Admin), Paragraph 49
Land ownership issues are not relevant to the planning process and should not be used to stifle development.
R (McLaren) v Woking BC [2021] EWHC 698 (Admin)
Local authorities must adhere to common law principles of lawful, rational and procedurally fair decision-making, even under the general power of competence in the Localism Act 2011.
Hussain v Sandwell Metropolitan Borough Council [2017] EWHC 1641 (Admin), Paragraph 125
The court must refuse relief if the outcome would likely be the same even without the complained-of conduct.
Senior Courts Act 1981, Section 31(2A)
Outcomes
Judicial review succeeds on grounds 1, 2, and 3.
The council unlawfully fettered its discretion by using its landowner status to prevent a necessary badger survey, thus creating procedural unfairness and acting irrationally.
Impugned decision (refusal of access) quashed.
The council's actions prevented a fair planning process and violated principles of natural justice.