English, R (on the application of) v East Staffordshire Borough Council & Anor

Permission to apply for judicial review requires an arguable case warranting full investigation. Confidential financial information supporting a planning application need not ordinarily be disclosed where objectors receive its gist and the planning authority has independently scrutinised it. Fairness requires a balance between meaningful participation and the applicant’s confidentiality. A planning committee may rely on officers’ summary of confidential material without seeing the underlying documents, provided it has sufficient information to understand the issue. A decision is irrational only where it meets the high Wednesbury threshold. Judicial review challenges to planning permissions must be brought promptly, although the statutory three-month limit cannot be replaced by a judicial six-week rule.

The claimant sought permission to bring judicial review proceedings challenging the defendant council’s grant of planning permission for 28 houses intended to help fund the National Football Centre at St George’s Park. The claimant argued that confidential financial information and an independent valuation review should have been disclosed, that the planning committee was required to consider those documents under the environmental impact assessment regime, and that the decision was irrational.

The permissions were granted on 24 June 2010. Proceedings were issued on 26 August 2010. The central issues were whether the grounds were arguable and whether the claim had been filed promptly.

1. Permission refused. The application failed on the merits and, independently, was not filed promptly.
2. Procedural fairness in planning depends on all the circumstances. It requires sufficient information to enable an intelligent response, but must also respect an applicant’s legitimate confidentiality. Applying R (Bedford) v London Borough of Islington [2002] EWHC 2044 (Admin), the objectors had the gist of the financial appraisal: the existence of a funding gap, the substantial contribution expected from the housing, and independent verification. Disclosure of the confidential underlying documents was not required.
3. The planning committee was not required to see the confidential financial report or review. The contention that the council had failed to consider a material consideration substantially repeated the rejected fairness argument.
4. The environmental impact assessment ground was based on a factual misconception. The housing application was not treated as an EIA development requiring an environmental statement. In any event, the reasoning in R (Bedford) v London Borough of Islington indicated that reliance on a planning officer’s summary of confidential financial material would not breach the relevant requirements.
5. The irrationality challenge failed. Applying the test in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 375, the decision was not outrageous in its defiance of logic or accepted moral standards. It was open to the council to conclude that the substantial reduction of the funding gap outweighed contrary planning policies.
6. Under CPR 54.5, a claim must be filed promptly and in any event within three months. The principles in R (Finn-Kelcey) v Milton Keynes Council [2008] EWCA Civ 1067 were applicable. There is no automatic six-week rule, consistently with R (on the application of Burkett) v Hammersmith and Fulham LBC (No.1) [2002] UKHL 23, but the claimant’s delay while obtaining after-the-event insurance was not prompt. Costs were ordered against the claimant, including reasonable preparation and acknowledgment costs, excluding witness statements.