Elizabeth Soilleux v Secretary of State for Levelling Up Housing and Communities

At the permission or leave stage in judicial review and statutory review, the conventional arguability threshold applies: the claimant must show a realistic prospect of success. The court may also apply discretionary bars, including delay.

Planning conditions requiring reserved matters to be in accordance with an outline permission generally permit broad conformity and harmony, assessed through planning judgment and degree. Flood risk combines the probability and potential consequences of flooding. The mere presence or increase of water does not itself establish flood risk without relevant harmful consequences. A planning decision must be read fairly and as a whole, and a challenge to reasoning will fail where the decision-maker has grappled with the principal controversial issues.

The claimant brought linked proceedings concerning an outline planning permission granted by South Cambridgeshire District Council and a later Inspector’s decision approving reserved matters on appeal. The statutory review challenge alleged errors concerning conformity with the Parameters Plan, the scope of reserved matters, the meaning of flood risk, betterment, unaddressed modelling issues and surface-water drainage conditions.

The judicial review challenge alleged that the original planning decision had been affected by a misleading presentation of flood-modelling information or a failure to consider a relevant matter. Permission and leave had previously been refused on the papers. The central issues were whether any ground was arguable with a realistic prospect of success and, for judicial review, whether delay constituted a discretionary bar.

1. Outcome. Leave for statutory review and permission for judicial review were refused. The judicial review claim was independently barred by extreme delay. Aarhus costs orders were confirmed at £5,000 in favour of the local authority and £5,000 in favour of the Secretary of State.
2. Arguability. The appropriate test was the conventional threshold of arguability with a realistic prospect of success, together with any applicable discretionary bar. The length and complexity of the hearing did not justify a heightened threshold.
3. Parameters Plan. The Inspector was entitled to treat the phrase “in accordance with” according to its ordinary and natural meaning. The assessment involved broad conformity and harmony, and was an exercise of planning judgment and degree. The alternative conclusion that ancillary infrastructure was not prohibited by the inclusive wording of the Parameters Plan was also unimpeachable. Heron Corporation v Manchester City Council and R (Swire) v Canterbury City Council supported that approach.
4. Reserved matters. Flood risk was, in principle, settled at the outline permission stage, except insofar as it related to landscaping or layout. In any event, the Inspector had considered the increased off-site flooding concerns on their planning merits, so any alleged error about the scope of reserved matters could not be material.
5. Flood risk. The legally correct definition, drawn from the National Planning Policy Framework and Planning Practice Guidance, treated flood risk as a combination of probability and potential consequences. Increased water, greater depth or greater extent did not, without more, constitute flood risk. The Inspector considered the possible consequences, including the temporary covering of gardens, and reached a planning judgment that the proposal was acceptable.
6. Reasons and conditions. The determination had to be read fairly and as a whole. The Inspector had addressed the principal controversial modelling and drainage issues. Planning Condition 8 formed one strand of a multi-faceted analysis and did not show that the decision had been based solely on the existence of that condition. The betterment comparison was relevant but was not the sole basis of the decision.
7. Delay. The nearly five-year delay was extreme when compared with the six-week period in the Civil Procedure Rules 1998. The modelling documents were publicly available and there was no concealment. The claimant could have challenged the outline permission promptly and could not reopen it through a later challenge after choosing to pursue the issue at the reserved matters stage.

• High Court (Planning Court): Permission for judicial review and leave for statutory review had been refused on the papers by Thornton J on 12 October 2022. Mr Justice Fordham confirmed the refusal after an oral hearing and confirmed the provisional Aarhus costs orders.