Gawthorpe, R (on the application of) v Sedgemoor District Council

A planning authority must address potential contamination where its own environmental health advice and national planning guidance identify investigation and remediation as necessary planning safeguards. Merely reading an officer’s report does not establish that the authority acted reasonably. A good reason is required before permission is granted without an appropriate condition. Statutory contamination powers do not duplicate or displace the planning system’s responsibility to control risks arising from proposed future use. In highway matters, an authority may take an overall view of safety and planning benefits, including arrangements whose full effectiveness may depend on securing compliance over time. The court may grant a declaration that permission was unlawful where a later undertaking removes the practical need for quashing.

The claimant sought judicial review of Sedgemoor District Council’s grant of planning permission for 14 dwellings, access works and car parking at an industrial site in Cheddar conservation area. He challenged the absence of a contamination condition and argued that an operators manual was not secured by an immediately effective planning obligation. The claimant also initially raised other grounds, including legitimate expectation, but did not pursue them at the hearing. A unilateral undertaking was entered into after the claim was brought, securing investigation and remediation before development began. The central issues were whether the permission was unlawful and what remedy and costs order should follow.

1. Delegation. The Planning Committee’s resolution was unsatisfactory and reasonably open to disagreement. Properly construed, it delegated to the relevant officer the decision whether to grant permission and, if so, on what conditions, while indicating that permission should be granted if an acceptable agreement was concluded.
2. Contamination. The potential contamination was a material planning consideration. The court assumed that the Committee had read the officer’s report, but that did not show that it had acted reasonably. The guidance in PPS 23, read with the relevant advice in Circular 11/95, required the planning authority to address investigation and remediation of risks associated with the proposed future use. The regime under Part IIA of the Environmental Protection Act 1990 did not duplicate or replace that planning responsibility. Reliance on the developer’s self-interest was insufficient. In the absence of any good reason, no reasonable authority would have granted permission without a condition addressing the issue. The decision was therefore unlawful.
3. Planning obligation and highway safety. The Committee was entitled to rely on the Highway Authority’s representative having seen the proposed mechanism for securing the operators manual and having raised no objection. It could also assess the highway and pedestrian-safety issues overall, including the benefit of improved parking and turning arrangements. This ground failed.
4. Remedy and costs. The undertaking under section 106 of the Town and Country Planning Act 1990 provided protection equivalent to the missing condition. The court therefore granted a declaration rather than quashing the permission. Considering the claimant’s success on contamination, his failure on the planning-obligation issue, the abandoned ground and the belated undertaking, there was no order for costs.