Oates, R (on the application of) v Wealden District Council & Anor

Regulations 122 and 123 of the Community Infrastructure Levy Regulations 2010 restrict the use of planning obligations and certain conditions, but do not require permission to be granted for development that is unacceptable in planning terms. They do not prevent refusal on highway grounds or a lawful Grampian condition preventing occupation until necessary infrastructure is provided. A planning officer’s imperfect explanation of the CIL regime will not invalidate permission unless it is significantly or seriously misleading in a material way. The report must be read fairly as a whole. Where the officer independently assesses the likely timing of development and infrastructure works and rationally concludes that residual cumulative traffic impacts will not be severe, the court will not interfere with that planning judgment.

Mrs Oates sought judicial review of Wealden District Council’s decision to grant outline planning permission for up to 390 dwellings at Willingdon, East Sussex. The site was unallocated and highway consultees had initially objected because necessary junction improvements might not be delivered in time. The objection was withdrawn after legal advice concerning the Community Infrastructure Levy Regulations 2010. Permission to apply for judicial review was initially refused by Dove J and, on renewal, by HHJ Jarman QC. On 9 November 2017, Lindblom LJ granted permission on one ground and retained the claim for determination in the Court of Appeal. The central issue was whether the planning officer’s report materially misled the committee about regulation 123 and the acceptability of the development’s traffic impacts.

1. Disposition. The claim for judicial review was dismissed. Lindblom LJ gave the leading judgment, Underhill LJ agreed, and Davis LJ agreed that the report, read as a whole, contained no material defect.
2. Statutory framework. Regulations 122(2), 123(2) and 123(2A) of the Community Infrastructure Levy Regulations 2010 adjust the operation of planning obligations and conditions. They do not compel a local planning authority to grant permission where development is unacceptable in planning terms. They do not prevent refusal where the highway network cannot satisfactorily cope with the traffic generated. Nor do they prevent a lawful Grampian condition preventing occupation until necessary infrastructure is provided, even if providing it is outside the applicant’s power. The court relied on Grampian Regional Council v City of Aberdeen District Council [1984] 47 P. & C.R. 633 and British Railways Board v Secretary of State for the Environment [1993] 3 P.L.R. 125.
3. Approach to the officer’s report. Following Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314, the court distinguished minor or inconsequential errors from advice that was significantly or seriously misleading in a material way. The report had to be read fairly and as a whole, while distinguishing the officer’s own planning judgment from consultees’ views.
4. Application. The officer’s comments in paragraph 4.16.16 did not fully explain the scope of regulation 123. However, the later sections of the report independently assessed the funding and likely timing of the junction improvements, the build-out of the proposed development, and cumulative traffic from other development. Her conclusion that the likely residual cumulative impact would not be severe was a rational planning judgment. The officer did not tell the committee that it had no choice but to grant permission, and the report did not prevent the committee from exercising its own judgment. The deficiency therefore did not invalidate the permission.

1. Court of Appeal (Civil Division). On 8 June 2018, the court dismissed the retained judicial review claim: [2018] EWCA Civ 1304.
2. High Court. Dove J refused permission on the papers on 31 January 2017. On renewal, HHJ Jarman QC, sitting as a deputy judge, refused permission on 8 March 2017.
3. Permission stage. On 9 November 2017, Lindblom LJ granted permission to apply for judicial review on a single ground and ordered that the claim be retained for determination in the Court of Appeal.