Flynn, R (On the Application Of) v The London Borough of Southwark Council & Anor

A planning committee’s resolution must be construed objectively and realistically, using its words and relevant context. An officer’s report may inform the resolution but is not incorporated into it without express words.

A broadly framed delegation to negotiate an appropriate section 106 agreement permits officers to exercise professional planning and valuation judgment. They may select rational mechanisms consistent with the resolution’s objectives, without returning the application to the committee.

An officer’s report materially misleads members only where flawed advice means their decision would or might have differed. The report must be read fairly and as a whole, including any correction or clarification supplied before the decision.

The appellant challenged planning permission for a major mixed-use redevelopment comprising 979 homes. The council’s Planning Committee had resolved to grant permission subject to conditions and the developer entering into an appropriate agreement under section 106 of the Town and Country Planning Act 1990.

Dove J dismissed the judicial review claim in [2019] EWHC 3575 (Admin). The appeal raised three principal questions: whether the section 106 agreement exceeded the authority delegated to officers; whether its arrangements for a build-to-sell fall-back and affordable housing viability review were lawful; and whether the committee had been materially misled about prospective Greater London Authority grant funding. A further, contingent issue concerned section 31(2A) of the Senior Courts Act 1981.

1. The appeal was dismissed. The committee’s resolution, rather than the planning officer’s report, was the instrument delegating authority to officers. A committee resolution must be understood objectively and realistically, by reading its words straightforwardly in their relevant context. Although an officer’s report may provide part of that context, it is not incorporated into the resolution without express words: [2021] EWCA Civ 827, paras 39–50.

2. The delegation to negotiate “an appropriate legal agreement” was broad. It required the officers to exercise professional planning and valuation judgment. The report informed that exercise but did not prescribe the agreement’s detailed terms. The negotiated arrangements lawfully secured delivery of the social rented units, including by transferring land and the value of non-residential floorspace. The officers were not required to return the completed agreement to the committee: paras 51–63.

3. The build-to-sell fall-back and viability review mechanism were also within the delegation. The officer’s advice had left the detailed review method, amount and tenure of additional affordable housing to the agreement. It was rational to adjust for social rented accommodation attributable to the east site and thereby identify a shortfall of 15 social-rent-equivalent habitable rooms. The resulting 50:50 tenure split for the relevant west-site development was consistent with the committee’s resolution and the officer’s advice: paras 64–75.

4. Social rented and social-rent-equivalent housing were not identical, but their differences in rent, management, oversight and tenure were not significant in the circumstances. The very small amount of social-rent-equivalent accommodation did not undermine the review mechanism. Treating the two forms as equivalent was within the officers’ reasonable planning judgment: paras 76–81.

5. The committee was not materially misled about grant funding. Although the original report incorrectly described funding as recently confirmed, later advice made clear that there was only an agreement in principle and that delivery of 116 social rented units was unconditional. Read fairly and as a whole, the material neither represented that funding had been secured nor contained a significant mistake capable of affecting the decision: paras 82–93.

6. Ground 5 was academic. Had an error concerning funding been established, the unchallenged viability evidence entitled the judge to find under section 31(2A) of the Senior Courts Act 1981 that it was highly likely the decision would have been the same. That conclusion required neither speculation nor an assessment of the planning merits: para 94.

1. Court of Appeal (Civil Division): The court unanimously dismissed the appeal in [2021] EWCA Civ 827, upholding the planning permission and Dove J’s dismissal of the judicial review claim.
2. High Court of Justice (Planning Court): Dove J dismissed the claim for judicial review in [2019] EWHC 3575 (Admin).