Cherwell District Council, R (on the application of) v First Secretary of State & Anor

Whether development on Crown land is carried out by or on behalf of the Crown is not determined by the private-law relationship between the Crown and the developer. A private contractor’s leasehold interest does not, as a matter of law, prevent the development from falling within section 294(1) of the Town and Country Planning Act 1990. The question is one of fact and degree, assessed by reference to the circumstances, including the Crown’s control and the purpose and benefit of the development. An appellate court should not substitute its view unless the decision-maker’s conclusion falls outside the bounds of reasonable judgment. Where the statutory and non-statutory procedures provide materially equivalent safeguards, it is not an abuse of power for the Crown to use the Circular 18/84 procedure rather than seek permission under section 299.

Cherwell District Council, the local planning authority, challenged the First Secretary of State’s approval of Home Office proposals for an accommodation centre for asylum seekers on former Ministry of Defence land near Bicester. The Home Office used the non-statutory consultation and determination procedure in Circular 18/84. Following a public inquiry, the inspector recommended refusal, but the First Secretary approved the development subject to conditions reflected in a section 299A agreement under the Town and Country Planning Act 1990.

Mr Justice Collins dismissed the Council’s application for judicial review: [2004] EWHC 724 (Admin). The appeal, limited to the procedural ground, concerned whether the development was by or on behalf of the Crown for section 294(1) purposes and whether the Home Office was obliged, or had abused its power by failing, to use the statutory section 299 procedure.

The appeal was dismissed. Chadwick LJ gave the leading judgment; Dyson LJ agreed and added observations, and Munby J agreed with both judgments.

1. Development by or on behalf of the Crown. The existence of a private interest in Crown land, including a leasehold interest held by a design, build and operate contractor, does not prevent the land from remaining Crown land or automatically exclude section 294(1) of the Town and Country Planning Act 1990. The expression by or on behalf of the Crown is not confined to strict private-law concepts of servant, agent, master or principal. It has a wider meaning which may include development carried out by an independent contractor where the circumstances show substantial Crown control, a Crown purpose and significant benefit to the Crown.
2. The issue is fact-sensitive. The contractor’s private interest may indicate that development serves the private interest rather than the Crown, but the question turns on the particular circumstances. In this case the centre was to be constructed and operated for Home Office purposes, and the First Secretary’s conclusion that it was Crown development was within the bounds of reasonable judgment.
3. Choice of procedure. Section 299(2) is permissive. It did not require the Home Office to seek statutory planning permission whenever it wished to dispose of Crown land or an interest in it for private development. The Circular 18/84 procedure provided safeguards as to notification, publicity, consultation and objections equal to those available under the statutory process. The section 299A agreement supplied enforceable planning obligations, subject to the statutory restrictions on injunctions and enforcement against Crown land.
4. The Council’s enforcement objection failed because section 294(1), rather than the absence of section 299 permission, protected a private-interest holder from enforcement in respect of development carried out by or on behalf of the Crown. Planning permission under section 299 would itself have remained subject to the enforcement restrictions in sections 294(1) and 296(2)(a). It was therefore lawful to use the non-statutory procedure.

Dyson LJ added that there was no legal requirement for the Crown to give reasons for choosing one lawful procedure over another. Munby J agreed with both judgments.

• Court of Appeal (Civil Division) — The appeal from the Administrative Court was dismissed.
• Administrative Court — Mr Justice Collins dismissed the Council’s judicial review claim on 6 April 2004: [2004] EWHC 724 (Admin).