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

Development carried out for the purposes of the Crown remains Crown development even where a private contractor designs, builds and operates it under a lease. The relevant question is whether the development is carried out on behalf of the Crown. Significant Crown control, Crown purposes and significant Crown benefit may establish that character.

Section 299 of the Town and Country Planning Act 1990 enables, but does not require, the Crown to use the statutory procedure when disposing of Crown land with the benefit of planning permission. Planning policy guidance is guidance rather than statute. Alternative sites are ordinarily relevant only in exceptional circumstances, particularly where the proposed development has conspicuous adverse effects. A decision-maker may differ from an inspector on the weight of planning considerations, provided the decision is lawful and rational.

Cherwell District Council challenged the First Secretary of State’s approval of a proposed Home Office accommodation centre at Bicester. The proposal involved the demolition of existing buildings and construction of a centre for approximately 750 asylum seekers. An inspector recommended refusal, principally because the rural location was insufficiently justified, the development was unsustainable and there were road-safety concerns.

The Secretary of State approved the proposal. The Council advanced seven grounds, including the alleged unlawful use of a non-statutory Crown development procedure, failure to consider alternative sites, failure to apply a sequential approach, errors concerning previously developed land and curtilage, inadequate consideration of local services, failure to consider temporary permission, and unlawful treatment of national policy. The central issues were whether the procedure was lawful and whether the decision disclosed an error of law.

The claim was dismissed. The court also refused permission to appeal, although the Council was given 21 days to file its notice of appeal. Costs were awarded to the First Secretary of State, subject to detailed assessment if not agreed.

1. Crown development. Section 299 of the Town and Country Planning Act 1990 provides an optional statutory mechanism enabling Crown land to be disposed of with the benefit of planning permission. It does not constitute an exhaustive planning code preventing the Crown from using the non-statutory procedure in Circular 18/84.
2. The proposed centre would be constructed and operated for Home Office purposes. Applying the approach approved by Forbes J in London Borough of Hillingdon v Secretary of State, the development was on behalf of the Crown. The private contractor’s lease and contractual role did not alter that conclusion. Crown immunity therefore applied under section 294(1), and planning permission was not required. The section 299A agreement and the non-statutory procedure provided the necessary safeguards.
3. Alternative sites. Under R (Jones) v North Warwickshire Borough Council, consideration of alternative sites is ordinarily relevant only in exceptional circumstances, especially where the proposed development has conspicuous adverse effects. Even if this proposal fell within that category, the inspector was entitled to regard a nationwide search for a better site as virtually impossible and to treat no error of law as arising.
4. Planning policy and previously developed land. The sequential approach and urban focus in planning guidance were materially the same. The guidance was not statutory. The whole previously developed site could be considered, while leaving undeveloped parts substantially undeveloped. The decision-maker was entitled to attach significant weight to the site’s previous development.
5. The Secretary of State rationally assessed the likely effect on local services as modest or slender, and could differ from the inspector. The failure expressly to address temporary permission did not justify relief because reconsideration would be pointless. National policy established need but did not dictate the outcome; the Secretary of State still had to balance that need against the planning objections. No error of law was established.

This was a first-instance judicial review. The court refused permission to appeal and granted 21 days for an application to the Court of Appeal.