Savage v Mansfield District Council

Permission for judicial review of outline planning permission should be refused where the authority has materially considered relevant environmental advice and evidence, even though no formal special protection area or potential special protection area exists. A planning committee’s report and discussion must be read as a whole; isolated wording will not establish that members were significantly misled. A previous planning decision need not be followed where material factual or contextual differences justify distinguishing it. Financial consequences of a possible future revocation may be relevant to the planning decision. A planning obligation’s legal validity may be secured by an alternative enforceable mechanism where its precise statutory basis is arguable. Judicial review claims concerning planning permission must also be brought promptly.

The claimant, a resident near the proposed Lindhurst development, renewed an application for permission to seek judicial review of Mansfield District Council’s decision to grant outline planning permission for a 169-hectare urban extension. The principal concern was the possible effect on nightjars and woodlarks in nearby Harlow Wood and the possibility of a future special protection area.

The claimant challenged the decision on six grounds, including failure to adopt a risk-based approach, misleading the planning committee about Natural England’s advice, failure to reconsider the application before issuing the decision notice, reliance on irrelevant considerations, unlawful reliance on a planning obligation, and delay. The central issues were whether the Council had lawfully assessed the environmental risk and whether the proposed indemnity was legally permissible.

1. Permission refused. The claimant’s grounds were not arguable. The environmental statement, consultation material, proposed protective protocol, and advice about the possible future designation of an SPA had addressed the substance of Natural England’s risk-based advice. No Regulation 61 assessment was required because the site was neither an SPA nor a pSPA.
2. The February 2012 Council guidance did not create an arguable legitimate expectation requiring a different result. It reflected the information and Natural England advice already obtained. The Wild Birds Directive was not directly enforceable against the Council, and the Council had complied with the reasonable-endeavours duty in regulation 9A of the Conservation of Habitats and Species Regulations 2010.
3. The committee was not significantly misled. Its report and oral discussion had to be read together in the context of a dynamic planning meeting. The test in Oxton Farms v Selby District Council [1997] EWCA Civ 4004 was not arguably met.
4. The Council was entitled to distinguish the Rufford Incinerator decision. The present site was outside the area identified as important for the relevant birds, the earlier decision involved a shadow assessment and particular concessions, and the earlier approach had not been shown to be legally required.
5. There was no new material factor requiring referral back to the committee. The later Natural England correspondence and the guidance document added nothing material to the matters already considered. Financial consequences of possible revocation were relevant under Health and Safety Executive v Wolverhampton City Council [2012] UKSC 34. The section 106 indemnity was not itself a reason for granting permission and did not breach regulation 122 of the Community Infrastructure Levy Regulations 2010.
6. The proposed indemnity arguably strained section 106(1)(a) and (d) of the Town and Country Planning Act 1990, but the challenge was not arguable because equivalent enforceability could be achieved under section 111 of the Local Government Act 1972, section 1 of the Localism Act 2011, or a contingent payment obligation under section 106(1)(d). The parties were directed to agree an appropriate undertaking.
7. The claim was not filed promptly. Although filed within three months, the claimant gave no adequate explanation for the two-month period between the decision and the pre-action letter. Permission was therefore refused on delay grounds also.

Lewis J refused permission on paper on 18 October 2013. The claimant renewed the application before the Administrative Court. Mr Justice Stewart refused permission on all six renewed grounds.