Oxby, R (on the application of)

A local authority may challenge its own planning decision in judicial review through its leader, where the authority cannot itself be both applicant and respondent. The availability of revocation and compensation under the Town and Country Planning Act 1990 does not require payment of compensation for a consent invalidly granted through bias. At the substantive stage, delay must be weighed against hardship, substantial prejudice and detriment. Relief should ordinarily be granted where a real danger of bias is established, the consent ought never to have been granted, and the interested party has made no material change of position in reliance on it.

Mr Oxby, acting as leader of Bassetlaw District Council, sought judicial review of two planning consents granted to Mr and Mrs Howcroft. Popplewell J refused relief, relying on the Council’s alternative power to revoke the consents under the Town and Country Planning Act 1990, delay, and prejudice to the Howcrofts. The Howcrofts did not answer the substantive allegations of bias or apparent bias. The appeal concerned standing, the relevance of statutory revocation, delay and prejudice, and whether the consents should be quashed without compensation.

1. Disposition. Lord Justice Hobhouse delivered the leading judgment. Lord Justices Millett and Otton agreed. The appeal was allowed, Popplewell J’s dismissal was set aside, and relief was granted in accordance with the Form 86A, subject to settling the detailed order.
2. Standing. Under section 31(3) of the Supreme Court Act 1981, the Council’s leader could act as a representative applicant because the Council could not sensibly be both applicant and respondent in proceedings challenging its own decision. That was sufficient at the leave stage, subject to abuse. At the substantive stage, the representative nature of the application was a factor in the court’s remedial discretion. The approach in Ex parte Jones [1988] 2 AER 207 was acceptable, and the two-stage approach in Ex parte Argyll Group [1986] 1 WLR 763 was applied.
3. Alternative remedy. Sections 97 and 107 of the Town and Country Planning Act 1990 provided a discretionary revocation route carrying possible compensation. That did not make judicial review inappropriate where the Council contended that the consents were void for bias and sought to avoid inappropriate compensation. Treating revocation as an alternative remedy was over-formalistic in the circumstances.
4. Delay and prejudice. Section 31(6) of the Supreme Court Act 1981 required the court, at the substantive stage, to balance an established unlawful decision against hardship, substantial prejudice and detriment. The guidance in R v Criminal Injuries Compensation Board ex parte A [1997] 3 WLR 776 was applied. The delay was marginal and there was no misleading of the court. The Howcrofts showed no hardship or material change of position in reliance on the consents. Their loss of benefits which they should never have received was not a legitimate grievance.
5. Merits and remedy. The governing test for bias was a real danger of bias. The evidence established a strong and unanswered inference that the councillors’ conduct had been influenced by their association with the developer’s agent. The alleged deception in the Southfields application was treated as corroboration; a case based solely on fraud would ordinarily require an action by writ. Since the consents ought never to have been granted, and no material change of position justified withholding relief, they should be declared void without compensation.

• Court of Appeal (Civil Division) — On 11 December 1997, allowed the appeal, set aside the dismissal, and granted judicial-review relief. [1997] EWCA Civ 2960.
• Queen’s Bench Division (Crown Office List) — Popplewell J dismissed the application on the grounds of statutory alternative remedy, undue delay and prejudice, without deciding the merits of the bias allegations.