Gazelle Properties Ltd v Sustainable Environmental Services & Anor

Judicial review may challenge a local planning authority’s decision to take enforcement action where the complaint concerns residual public-law grounds outside the statutory enforcement appeal, including irrationality, procedural unfairness, or failure to consider relevant matters.

Under section 172 of the Town and Country Planning Act 1990, breach of planning control and expediency are separate questions. Expediency requires a realistic assessment of the public interest, including whether enforcement’s likely benefits justify its costs and consequences. Negotiations about compliance and negotiations concerning a possible future development may both be material.

Where a material new circumstance arises while an enforcement notice remains in force, the authority must consider whether to withdraw or amend it under section 173A. The proposed allocation of land for a future waste facility was such a circumstance.

Gazelle Properties Ltd owned the former Fuller’s Earthworks site at Combe Hay. Sustainable Environmental Services Ltd had an interest in developing a waste processing facility there. Bath & North East Somerset Council resolved to delegate enforcement action concerning alleged changes of use and operational development, and an officer subsequently issued enforcement notices.

The claim challenged the committee’s and officer’s decisions on jurisdictional, materiality, fairness, rationality, procedural and planning-unit grounds. It also challenged the Council’s failure to reconsider enforcement after promoting the site for allocation as a future residual waste facility in the emerging Joint Waste Core Strategy.

1. Jurisdiction. The court had jurisdiction to review residual public-law errors outside the statutory grounds of appeal under section 174 of the Town and Country Planning Act 1990. Such grounds included irrationality, unfairness, and failure to take account of matters relevant to expediency. The court could not, however, determine factual and planning-merit issues belonging to the statutory appeal.
2. Expediency and negotiations. Section 172(1) required the Council first to identify any breach and then to decide whether enforcement was expedient. Those questions were distinct. Expediency required a reasonable and realistic assessment of the public interest and of the likely consequences of enforcement. Negotiations aimed at securing compliance and negotiations aimed at regularising or replacing the existing use were both potentially material. The committee erred by treating the negotiations and SES’s proposed development as immaterial and preventing Mr White from making relevant representations.
3. Delegated decision. The officer’s decision was infected by the same error. If negotiations were material to the delegated decision, they were material to the committee’s decision from which the delegation arose. The officer also failed properly to consider SES’s willingness and intentions.
4. Fairness and rationality. The committee acted unfairly by preventing relevant representations. There was a sufficient risk that the excluded material might have affected the outcome. The decision to exclude it was also irrational. The separate challenge concerning private provision of Annex B failed because the documents had already been seen and addressed by Gazelle.
5. Planning unit. The challenge to the identification of the planning unit concerned matters of fact and degree for the statutory enforcement appeal, not judicial review.
6. Continuing review. Section 173A imposed at least a public-law obligation to consider withdrawal or amendment when a new material factor emerged. The Council’s promotion of the site for a waste recycling facility was material to enforcement expediency. The matter should have been reconsidered by the members.

The claim succeeded on the jurisdiction, negotiations, delegated decision, fairness and continuing-review grounds. The court reserved the form of relief.

First-instance judicial review in the Administrative Court. The judgment does not state a prior appellate decision in this litigation.