Capel Parish Council, R (on the application of) v Surrey County Council

Interim relief under section 113(5) of the Planning and Compulsory Purchase Act 2004 depends principally on the balance of convenience and the prejudice likely to be suffered if relief is refused. Where a related planning permission decision may generate further judicial review proceedings, the court should consider joining those proceedings to the statutory plan challenge. Consolidation may avoid duplicated preparation, costs and court time. A speculative risk that planning permission will be granted does not establish prejudice where the claimant can challenge that decision separately and seek appropriate directions.

The claimant parish council challenged provisions of the Surrey Waste Development Plan document under section 113 of the Planning and Compulsory Purchase Act 2004. It also sought interim relief under section 113(5) suspending the operation of policies and site references concerning the Clock House Brickworks Caple site.

A planning application concerning the site was due to be considered by the defendant county council. The claimant argued that refusing interim relief might allow planning permission to be granted before determination of the statutory challenge. The central issue was whether that possibility created sufficient prejudice to justify suspending the plan pending the substantive hearing.

1. The application for interim relief was refused. The court directed that any application for permission to apply for judicial review concerning the county council’s relevant decision should, if permission were granted, be joined to and heard with the section 113 challenge. Liberty to apply was granted provisionally.

2. The court had power to grant interim relief under section 113(5) of the Planning and Compulsory Purchase Act 2004. The challenges were arguable, but it was unnecessary to decide whether they were strongly arguable because the application turned on the balance of convenience.

3. The relevant question was the prejudice, if any, that the claimant would suffer if interim relief were refused. The possible outcomes of the planning application included refusal, deferral, or a resolution or grant subject to a section 106 agreement. These possibilities were too uncertain to establish material prejudice.

4. If planning permission were granted, the claimant could pursue other legal grounds by judicial review. It would generally be desirable to hear those grounds with the section 113 challenge where they did not materially increase the cost or length of the proceedings. Joining the challenges would avoid duplication and expedite determination.

5. The possibility of an interested party participating did not justify interim relief. Under the statutory challenge procedure, the court had discretion to allow a person other than the local planning authority to appear where necessary to avoid injustice, although that discretion would rarely be exercised. The court considered R (on the application of) George Wimpey UK Ltd v Tewkesbury Borough Council [2008] EWCA (Civ) 12, while noting that it arose on an application for permission to appeal and its binding status was questionable.

6. The defendant’s costs of the interim application were made costs in the cause, subject to detailed assessment if not agreed.