Greenfields (IOW) Limited, R (on the application of) v Isle of Wight Council

A challenge to a planning permission may be brought within time from the date of the permission where an earlier resolution was only preliminary to the grant, rather than a distinct stage in a multi-stage process.

Planning committee members may be predisposed towards or against an application, but must retain an open mind and decide on planning grounds. Apparent bias requires a real possibility of bias assessed by reference to all relevant circumstances.

A failure to publish a planning obligation is unlawful, but relief remains discretionary and depends on demonstrated prejudice. Officers’ explanations may clarify, but must not fundamentally alter or contradict, the contemporaneous report. A financial contribution under a planning obligation must satisfy the requirements of regulation 122 of the Community Infrastructure Levy Regulations 2010.

The claimant sought judicial review of the Isle of Wight Council’s conditional planning permission for a large mixed-use development at West Acre Park, Ryde. The permission was granted on 4 August 2023 after earlier planning committee resolutions in July 2021 and April 2023.

Five grounds alleged procedural unfairness, apparent bias or improper purpose, failure to publish a draft or completed section 106 agreement, unlawful deferral of consideration under regulation 122 of the Community Infrastructure Levy Regulations 2010, and reliance on immaterial or misleading highway-mitigation information.

The central procedural issue was whether the July 2021 resolution was a preliminary step to the eventual grant, so that time ran from the grant under Burkett, or a distinct decision which had to be challenged earlier.

1. Time and preliminary resolutions. The July 2021 resolution was preliminary to the grant and was not a distinct stage in a multi-stage process. The grant remained conditional on the section 106 agreement, officers treated the earlier resolution as a material consideration, and the April 2023 committee decision authorised the eventual grant. The claim was therefore brought in time, applying the approach in R (Burkett) v Hammersmith and Fulham London Borough Council [2002] UKHL 23.
2. Procedural irregularity. The chair unlawfully excluded a councillor from participating after he had missed part of the site visit, instead of leaving the issue to the councillor’s own judgment with advice if appropriate. Other alleged irregularities were not established. Continuing the meeting after three hours was validly achieved by affirmation.
3. Predetermination and bias. Councillors are entitled, and may be expected, to have expressed planning views. Clear pointers are required before predisposition becomes a closed mind. The apparent-bias test was whether a fair-minded and informed observer would conclude that there was a real possibility of bias. The chair’s conduct did not establish predetermination, apparent bias or an improper purpose.
4. Section 106 publication. The authority breached article 40(3)(b) of the Town and Country Planning (Development Management Procedure) Order 2015 by failing to publish the agreement. The breach did not justify quashing the permission because the heads of terms were published in the officer’s report and the claimant showed no material prejudice.
5. Highways and regulation 122. The officers’ evidence clarified, rather than contradicted, the report. The highway contribution was based on potential improvement schemes and was reasonably related in scale and kind to the development. The planning obligation required compliance with regulation 122, and consideration of that requirement had not unlawfully been deferred.
6. Relief. The later April 2023 reconsideration overtook any procedural criticisms of the July 2021 meeting. Permission was refused on some grounds under section 31 of the Senior Courts Act 1981, granted on the remainder, and the claim was dismissed.

Not stated in the judgment.