Meritgold Ltd, R (on the application of) v London Borough of Barnet

A local planning authority’s decision that a later application is the same as, or substantially the same as, an earlier application involves planning judgment. Such a judgment is reviewable only on ordinary public-law grounds, including irrationality. A judicial review challenge may nevertheless be refused where subsequent events have overtaken the dispute and the issue has become wholly academic. The court may also take account of the authority’s specialist expertise when assessing the difficulty of an irrationality challenge.

The claimant challenged the defendant council’s decision in April 1999 to decline to determine a planning application under section 70(A) of the Town and Country Planning Act 1990. The application concerned alterations intended to facilitate retention of a fourth-storey flat. The council considered it substantially the same as an earlier application dismissed on appeal in 1998.

The judicial review proceedings were repeatedly adjourned while later planning applications were made in 2001 and 2003. Those applications gave the claimant further opportunities to advance revised proposals, and the later proposals had been considered in subsequent planning proceedings. The central issues were whether the 1999 application was substantially the same as the earlier application and whether any useful relief remained available.

1. Application dismissed. The challenge to the council’s refusal to determine the 1999 application had become wholly academic. Later applications in 2001 and 2003 had given the claimant further opportunities to put forward modifications to the fourth-storey flat. The dispute concerning the 1999 application had therefore been overtaken by events.
2. Under section 70(A) of the Town and Country Planning Act 1990, the local planning authority had to form an opinion whether the later application related to development that was the same as, or substantially the same as, the development in the earlier application. That assessment necessarily involved a degree of planning judgment. The court would not readily interfere with that judgment on judicial review.
3. The claim form alleged that the council’s judgment was Wednesbury perverse. The authority’s expertise in comparing planning proposals meant that this would have been a particularly difficult hurdle for the claimant to overcome, even if the claim had not become academic.
4. The refusal of an adjournment was upheld. The claimant had failed to ensure that its solicitors were properly instructed despite clear notice of the hearing and an opportunity to obtain instructions during the day. The merits were short and did not involve complex legal issues.
5. The claimant was ordered to pay the defendant’s costs, summarily assessed at £4,000.