Feather v Cheshire East Borough Council

At the permission stage of a judicial review, the court should grant permission where the claimant’s legal argument is properly arguable and cannot be characterised as clearly unarguable. The court should not determine the substantive merits prematurely. Where planning policy requires consideration of whether a replacement building is materially larger, the interaction between physical dimensions, floorspace, footprint, volume, appearance and wider planning considerations may require full argument. Granting permission does not determine the correct interpretation of the policy or substitute the court’s planning judgment for that of the planning authority.

The claimant challenged planning permission granted by Cheshire East Borough Council for a replacement dwelling in the Green Belt. The proposed dwelling included a substantial fully subterranean basement. The claimant argued that the basement floorspace should have been included when assessing whether the replacement dwelling was materially larger under paragraph 3.6 of PPG 2, and that the authority should then have considered the presumption against inappropriate development and very special circumstances.

Permission had previously been refused on the papers by His Honour Judge Pelling QC on 4 December 2009. The claimant renewed the application before the Administrative Court. The central issue at this stage was whether the challenge was sufficiently arguable to justify permission, rather than whether the planning authority had ultimately erred.

1. Permission granted. The renewed application for permission to apply for judicial review was granted. The costs of the permission hearing were ordered to be costs in the case.
2. The court was not required at the permission stage to decide the proper interpretation of paragraph 3.6 of PPG 2 or whether the proposed replacement dwelling was materially larger than the existing dwelling. The claimant’s argument was not so clearly unarguable that permission should be refused.
3. The argument raised a substantial issue concerning the relationship between the words materially larger and the planning considerations relevant to Green Belt development. It was arguable that the assessment should include the proposed basement floorspace and possibly a volumetric comparison, rather than focusing principally on external appearance and visual impact.
4. The authorities, including Guildford Borough Council v Secretary of State for Community and Local Government [2009] EWHC 3531 (Admin) and R (Heath and Hampstead Society) v LB Camden [2008] 2 P & CR 13, showed that the issue warranted sustained argument. The court expressly left open whether the defendant’s planning-judgment approach would ultimately prevail.
5. The substantive judicial review was to be listed for a one-day hearing, with half a day’s reading time. The defendant was to serve evidence within 35 days, with any responsive evidence from the claimant to follow within 21 days.

• Administrative Court: Permission had been refused on the papers by His Honour Judge Pelling QC on 4 December 2009. On renewal, Mr Justice Foskett granted permission to apply for judicial review.