Eastwood, R (on the application of) v The Royal Borough of Windsor & Maidenhead

In judicial review of a local authority’s planning-enforcement decision, the court must not act as an appellate decision-maker or substitute its view on the merits. A decision is reviewable for irrationality only where it crosses the boundary between being wrong and being perverse, absurd or irrational. The high threshold remains subject to ordinary public-law grounds such as illegality, procedural irregularity, bias and abuse of power.

When public authorities take decisions affecting children, their best interests must be considered first and treated as a primary, though not necessarily decisive, consideration. They may be outweighed by sufficiently strong competing considerations. A statutory power allowing an authority to decline to determine a repeat planning application where it thinks there has been no significant change is particularly difficult to challenge, absent perversity.

The claimant sought renewed permission to bring two linked judicial review claims concerning a Romany Traveller site in the defendant local authority’s area.

The first claim challenged the authority’s decision to enforce an earlier planning enforcement notice after an 18-month period during which alternative Traveller pitches had been expected to become available. The second challenged the authority’s refusal to determine a later planning application for one caravan under section 70A of the Town and Country Planning Act 1990.

The central issues were whether the enforcement decision was arguably perverse because the expected alternative pitches had not been provided, and whether the section 70A decision was arguably unlawful or perverse.

1. The renewed application in the first case succeeded only on the ground that the authority’s decision to proceed with enforcement was arguably perverse. The authority had failed to give meaningful weight to the failure to provide alternative pitches, despite that provision being a fundamental premise of the Inspector’s and Secretary of State’s earlier decisions. The court stressed that permission merely crossed the arguability threshold and that proving perversity at the substantive hearing would be difficult.

2. The court applied the principles in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4. The best interests of children had to be considered first and as a primary consideration under section 11 of the Children Act 2004. That did not make the children’s interests decisive. The authority had carefully considered them and had not treated another consideration as inherently more significant, so this ground was untenable.

3. A decision under section 178 of the Town and Country Planning Act 1990 was in principle amenable to judicial review. However, the court adopted the restraint described in R v Hillingdon LBC, ex p Puhlhofer [1986] UKHL 1: judicial review is not an appeal on the facts or merits. Review is available for illegality, corruption, bias, procedural irregularity, abuse of power or Wednesbury irrationality. Irrationality requires a decision so wrong that it is properly characterised as absurd, perverse or irrational.

4. In the second case, section 70A of the Town and Country Planning Act 1990 permitted the authority to decline to determine a repeat application where it thought there had been no significant change in the relevant considerations. The formulation based on the authority’s thought or belief made the decision especially difficult to challenge. The proposed distinction between an application for the whole site and one caravan did not arguably establish a significant change or perversity.

5. Permission was refused in the second case. The stay on eviction measures in the first case continued until determination of the substantive judicial review claim. The court declined to reconsider its conclusion that the eviction decision was not arguably disproportionate.

These were renewed applications for permission to seek judicial review. Permission had previously been refused on the papers by Mr Justice Lewis on 24 July 2013 and by Mr Timothy Dutton QC on 13 August 2013.