Fulford Parish Council, R (on the application of) v City of York Council & Ors

Permission to apply for judicial review requires an arguable case suitable for investigation at a full hearing. That threshold is lower than the standard required at the substantive hearing, but a disagreement with a local planning authority’s evaluative planning judgment does not ordinarily satisfy it. Where the authority has considered the relevant evidence, addressed material changes, and reached a rational conclusion on matters such as archaeology, flood risk, protected species or air quality, the court will not substitute its own planning assessment. A challenge to refusal to revoke an outline planning permission may be parasitic on the substantive challenge to the related reserved matters decision. The authority retains a discretion whether to revoke the permission.

Fulford Parish Council sought renewal of permission to apply for judicial review concerning two decisions by City of York Council. The first granted reserved matters permission for 655 dwellings and associated facilities at the Germany Beck site. The second refused to revoke the outline planning permission and associated reserved matters.

The grounds concerned alleged failures relating to the possible site of the Battle of Fulford, flood risk, bats, air quality and revocation. Lewis J had refused permission on the papers. The renewed application required the court to decide whether any ground was arguable.

1. Permission threshold. The court applied the test in the 2013 White Book: permission should be granted only where the papers disclose an arguable ground meriting full investigation at an oral hearing. This is a lower threshold than that required to succeed at the substantive judicial review hearing.
2. Archaeology. The Council was not legally required to describe Germany Beck as the probable site of the Battle of Fulford merely because it was regarded as the most likely site. The evidence remained ambiguous and inconclusive. Whether the archaeological conditions provided adequate mitigation was a matter of planning judgment and was not susceptible to judicial review on the grounds advanced.
3. Flood risk. The Council had considered the updated flood map, later flooding, the environmental statement, the committee report and representations made at the meeting. Its conclusion that the existing mitigation measures were sufficient was rational and disclosed no arguable error of law.
4. Bats. The Council had sufficient survey material to conclude that the effects could be addressed through a mitigation strategy, secured by condition. That was a planning judgment which was not susceptible to judicial review merely because further detail remained to be settled.
5. Air quality. Air quality had been considered in the updated environmental statement and committee report. The chair’s remark about material relating only to the outline permission did not establish that the committee treated air quality as irrelevant.
6. Revocation and outcome. The revocation challenge was parasitic on the rejected grounds concerning the reserved matters permission. The Council had a discretion to revoke, had properly considered the application and had given detailed reasons. The claim was not arguable; permission was refused. The claimant was ordered to pay the Council’s costs of the acknowledgment of service in the sum of £1,200.

Lewis J refused permission to apply for judicial review on the papers. The renewed application was heard by Judge Behrens sitting as a High Court judge, who refused permission.