Ward, R (on the application of) v Bolton Metropolitan Borough Council & Ors

Permission to bring judicial review requires an arguable ground with a realistic prospect of success. Where a challenge alleges irrationality in a planning judgment, the threshold is high. A planning authority may rely on earlier technical evidence where it concerns relatively permanent geological features, provided it has addressed the material planning difficulties through appropriate conditions. The age of a report does not alone make it irrelevant. Procedural unfairness is not established merely because a document was not placed on the planning file where no statutory duty required its disclosure and its substance was fairly conveyed in the officer’s report.

The claimant sought renewal of permission to challenge Tameside Metropolitan Borough Council’s grant of full planning permission for residential development on a steep site at Hanover Street, Mossley. Two grounds remained: alleged irrationality in concluding that sufficient geotechnical information existed to permit development subject to conditions, and alleged reliance on an earlier consultation response which had not been available for public inspection.

The court considered the site’s planning history, including earlier investigations, an unsuccessful reserved-matters appeal, later geotechnical material and detailed conditions addressing foundations, rock-fall protection and slope stability.

1. Permission threshold. Permission would be granted only if the papers disclosed an arguable ground of judicial review meriting full investigation and having a realistic prospect of success.
2. Geotechnical challenge. The irrationality challenge had no realistic prospect of success. The authority knew the site’s history and difficulties, had firm evidence concerning the principle of development, and imposed detailed conditions precedent addressing the identified engineering risks. The claimant did not challenge those conditions. The later planning statement also addressed the concerns raised by the earlier Inspector. The earlier refusal therefore did not make the later decision an unexplained or arguably irrational reversal.
3. Relevance of the earlier consultation response. The GMGU letter was capable of being relevant. It concerned the feasibility of a substantially identical development on the same site and the geological features, soil types and substrate characteristics were not shown to have changed. Its age did not, in this context, deprive it of materiality; the weight to be given to it was for the authority.
4. Public availability and fairness. The letter was not a response to the application and no statutory requirement made it available for inspection on the planning file. Its gist was nevertheless identified in the officer’s report. The principle discussed in R (oao Joicey) v Northumberland CC [2014] EWHC 3657 (Admin) did not assist because the document was not information which the law required to be accessible to the public.
5. Disposition and costs. Permission to proceed was refused. The claimant was ordered to pay the defendant’s costs, summarily assessed at £2,962.50 plus VAT, excluding costs of oral submissions.