Enterprise Hangars Ltd v Fareham Borough Council

A local planning authority cannot use its separate rights as landowner to inhibit its lawful determination of a planning application. Public-law duties, including procedural fairness, continue to apply when the authority exercises landowner powers. Where the authority’s own inspection supplies material adverse evidence, refusing the applicant reasonable access to obtain responsive evidence may create procedural unfairness. A landowner’s opposition to development may be a material planning consideration, but it should remain distinct from the planning process; the authority may rely on ownership to prevent development after permission is granted. Under section 31(2A) of the Senior Courts Act 1981, relief should be refused only where it is highly likely that the outcome would not have been substantially different. In planning cases, that requires more than speculation about the merits and may require a decisive basis for predicting the appeal’s failure.

The claimant applied for permission to develop nine mixed-use live/work hangar buildings at Solent Airport. The defendant owned the land and was also the local planning authority. After the defendant concluded that badgers were reasonably likely to be present, it required a habitat survey before determining the application but refused the claimant access to conduct one, principally because the proposed development was inconsistent with the defendant’s strategic vision and the land was not for sale.

The application was refused, including on protected-species grounds. The claimant sought judicial review of the refusal of access, alleging fettering of discretion, procedural unfairness and irrationality. The issues included whether the defendant could rely on its landowner status, whether the claimant had suffered material procedural disadvantage, whether relief should be refused under section 31(2A) of the Senior Courts Act 1981, and the effect of the pending planning appeal.

1. Grounds 1–3 succeeded. The decision refusing access was quashed. The court was minded to make a mandatory order requiring access for the survey, subject to written submissions and any undertaking by the defendant.
2. The defendant’s landowner powers under the Local Government Act 1972 and the Localism Act 2011 did not place it in the same position as a private landowner. As planning authority, it had to exercise its functions according to public-law principles. It could not use landowner rights to inhibit its ability to determine planning applications lawfully. The Town and Country Planning General Regulations 1992 confirmed the need for effective separation between the authority’s planning and land-management functions.
3. The refusal of access was materially connected with the planning application. The defendant’s strategic vision was inextricably linked with its planning policies and with the matters required to be considered under section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004. The defendant had therefore allowed a planning objection to influence a separate landowner decision and had constrained the claimant’s ability to address the planning merits on appeal.
4. The defendant’s planning officer had inspected the site and relied on his conclusions to reject the possibility of dealing with the survey by condition. The defendant’s refusal of access prevented the claimant from testing that evidence through its own observations. This created procedural unfairness under the principles identified in Spitfire Bespoke Homes Ltd v SSCLG [2020] EWHC 958 (Admin) and Hopkins Developments Ltd v Secretary of State for Communities and Local Government [2014] EWCA Civ 472.
5. A landowner’s intention not to permit development may be a material consideration in determining a planning application, but that is the extent of its relevance. The landowner should otherwise maintain its objection outside the planning process. The defendant’s stated reasons, including alleged operational disruption and concerns about piecemeal disposal, were unsupported or inconsistent with the evidence and were irrational. The reasoning in R (McLaren) v Woking BC [2021] EWHC 698 (Admin) was relevant by analogy.
6. Applying section 31(2A) of the Senior Courts Act 1981, the defendant failed to show that it was highly likely that the claimant’s outcome would not have been substantially different. The relevant outcome included the grant or refusal of permission by the local authority or on appeal. The court should not speculate about the planning inspector’s assessment of a range of planning matters without a decisive basis for concluding that the appeal would fail. The defendant therefore did not satisfy the statutory threshold.

The judgment was a first-instance judicial review decision. The claim was filed on 2 November 2022. Interim injunctive relief was refused on 9 November 2022; the planning application was then refused. Permission was initially refused by Lang J but granted by Lieven J after oral submissions. The claim was transferred to the Planning Court by order of Holgate J under CPR 54.21(2)(ix).