Godfrey, R (on the application of) v Southwark

A planning authority must determine a current planning application by applying its statutory duties, the development plan and current material considerations. An earlier project brief, consultation exercise or understanding about a proposed facility cannot fetter that assessment merely because it influenced earlier proposals. A substantive legitimate expectation requires a sufficiently specific representation or promise, and the court will enforce it only where failing to do so would be so unfair as to amount to an abuse of power, subject to the public interest. Where a development-plan policy requires a community centre but specifies no size, the authority may assess what provision meets current needs. Earlier failed proposals may form part of the planning history, but need not be statutory material considerations.

The appellant sought permission to bring judicial review proceedings to quash planning permission granted by Southwark to BDW Trading Ltd for a mixed-use development. The challenge concerned provision for a community centre within a health-centre building. The appellant relied on the council’s earlier project brief, consultation discussions and preferred-bidder report, alleging a failure to consider material matters, non-compliance with UDP policy 7P and a substantive legitimate expectation of a larger, separate facility.

Lindblom J refused permission in [2011] EWHC 2220 (Admin). On appeal, the appellant also alleged that variation of a 2003 development agreement in 2008 breached EU procurement law. The central issues were whether the earlier material constrained the council’s statutory planning assessment, whether policy 7P required a facility of a particular size, and whether the procurement ground could undermine the 2010 permission.

1. Permission refused. The court declined disclosure of the development agreements and concluded that there was no real prospect of quashing the planning permission.
2. The council had to perform its statutory duties under section 70(2) of the Town & Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004. UDP policy 7P required a community centre at the site, but imposed no particular size or requirement that it be freestanding. The officer’s report lawfully assessed current community needs, competing demands for space and nearby facilities, and adequately summarised consultation responses.
3. The court assumed that the 2002 material conveyed an intention to provide a large and separate community centre. That intention did not create a substantive legitimate expectation. The delay, the later adoption of the development plan and the council’s continuing public duty to assess current needs meant that the earlier assessment could not fetter its discretion or displace current considerations.
4. The approach to substantive legitimate expectation is fact-sensitive and rigorous. Public authorities’ duties to act in the public interest remain central. Only where departure from a sufficiently specific promise would be so unfair as to amount to an abuse of power should the court require the promise to be honoured, subject to the overriding public interest.
5. Earlier failed applications could, at most, be part of the planning history and a matter the committee might take into account. They did not alter the clear meaning of policy 7P or create unacceptable uncertainty in the development plan.
6. The procurement challenge concerned a legally distinct 2008 commercial agreement, was raised too late and could not undermine the legality of the 2010 planning permission. Lords Justice Moore-Bick and Patten agreed with Lord Justice Pill.

• Court of Appeal (Civil Division): The appeal was dismissed and permission to proceed with the judicial review claim was refused. [2012] EWCA Civ 500
• Administrative Court: Lindblom J refused the renewed application for permission to apply for judicial review. [2011] EWHC 2220 (Admin)
• Initial application: Permission to apply for judicial review was refused on consideration of the papers.