Oxford City Council v Secretary of State for Housing Communities and Local Government

A judicial review challenging reasoning in a planning appeal is ordinarily academic where the claimant succeeded in the appeal and the impugned reasoning cannot affect the operative outcome. The court should exercise jurisdiction in such a case only in exceptional circumstances. This is particularly so where the disputed planning judgment may be reconsidered in a later appeal. The weight given to a local planning policy in light of the evidence is ordinarily a matter of planning judgment, rather than a pure question of policy interpretation.

Oxford City Council sought permission to apply for judicial review of an Inspector’s dismissal of an appeal against refusal of planning permission for two dwellings. The Council challenged the Inspector’s treatment of affordable housing policy HP4 and alleged failure to take account of earlier appeal decisions or to give adequate reasons for departing from them. The Council had nevertheless succeeded in resisting the planning appeal because other identified harms justified refusal of permission. The central issues were whether the proposed judicial review was justiciable despite being academic and whether exceptional circumstances justified the court’s intervention.

1. Permission refused. The claim was academic because the Council had succeeded in the planning appeal and challenged only reasoning which did not affect the operative result. The court declined to exercise jurisdiction.
2. The Council could not use the statutory challenge procedure under Town and Country Planning Act 1990, section 288, because the Inspector’s decision had not operated adversely against it. That did not, however, make this an exceptional case warranting judicial review.
3. The court applied the reasoning in Tewkesbury Borough Council v Secretary of State for Communities Housing and Local Government and Other [2019] EWHC 1775 (Admin). Issues of this kind may be reinvestigated in a subsequent section 78 appeal, allowing the Council to invite a later Inspector to reconsider the approach to policy HP4.
4. The dispute concerned the weight to be given to a local policy in particular evidential circumstances. That was quintessentially a matter of planning judgment, taking account of the policy and the surrounding evidence, rather than a question of policy interpretation requiring immediate judicial determination.
5. The permission-stage provisions in section 31(3C) and following of the Senior Courts Act 1981 provided a further reason not to entertain the claim. The court concluded that the claim was unarguable because it was academic and no exceptional circumstances justified intervention. It therefore refused permission without considering the substantive alleged breaches of the North Wiltshire District Council v Secretary of State [1993] P&CR 137 principles.

Permission to apply for judicial review had previously been refused on the papers by Andrews J on 11 April 2019. The present court reconsidered the permission application following an oral hearing and refused permission.