Borough defeats challenge over consent for £120m regeneration scheme

Gravesham Borough Council has defeated a High Court challenge to its planning committee’s decision to grant planning consent for a £120m regeneration scheme for the town's Heritage Quarter.

The legal challenge in Couves, R (On the Application Of) v Edinburgh House Estates Ltd [2015] EWHC 504 (Admin) was brought by a local resident, Suzanne Couves, secretary of Urban Gravesham, a civic society.

Gravesham’s Regulatory Board (its planning committee) passed a resolution in April 2013 approving Edinburgh House’s application for a major mixed-use scheme in principle.

Negotiations between the developer and the council over a s. 106 agreement followed, leading to planning permission being issued by a council officer in May 2014.

Gravesham said the officer was acting under delegated powers, while the claimant argued that he had no delegated powers of decision.

The claimant’s challenge was based on three grounds:

1. The officer had no power to grant permission, once the matter had been considered by the Regulatory Board, without an express delegation of that power to an officer, or without the outcome of the negotiations being reported back to the Regulatory Board, neither of which steps were taken. It was argued that the officer had purported to consider afresh whether to grant permission, so even if he had had delegated power to approve the outcome of the negotiations, he had gone beyond that power.
2. There had been changes of circumstance since the resolution of the Regulatory Board, including in the differences between the s106 agreement as negotiated and as aimed for by the board, such that, as only the board had power to grant permission, it had failed to take into account those later material considerations. (The judge, Mr Justice Ouseley noted that this ground depended on Couves’ QC succeeding on ground 1.)
3. If the officer did have delegated power to grant permission, he had failed to consider whether the Regulatory Board resolution could bear the significant weight he gave it in the light of changes of circumstance, or in the light of flawed legal advice, which it received, about the risk of an order that the council pay the costs of the appeal, because of an unreasonable refusal of planning permission.

Mr Justice Ouseley dismissed the claim. On the delegation issue, he concluded that although the delegation structure was “less transparent and clear than the [council’s] constitution promised, there was ultimately….a distinct unrealism about the claimant’s case”.

The judge said: “The [Regulatory Board] undoubtedly had power to resolve in favour of granting permission, which was the highly contentious decision, hotly opposed by the claimant and Urban Gravesham.

“As a result of that decision, it was understood that an officer would negotiate the s106 agreement and conditions. It can safely be assumed that the [board] trusted its officer to do the best which could be done and, if he were concerned about how the negotiations were going, to report back, keeping in touch with members, as he did. The wide powers enjoyed by members to bring the [board] back in again, and those of officers, suggest that it would have expected the power exercised by the officer, in the light of its decision on the merits of the application, to be wide and not narrow.”

Mr Justice Ouseley added: “The fact of agreement, and the officer's intention to grant permission were reported back before the grant of permission. The debate is over whether or not the final decision had to go back to the [Regulatory Board].”

The High Court judge asked why, if the claimant QC’s contention on the delegation point was correct, not one council member, or the chief executive or the director of planning, said so at any stage before the grant of permission.

“The [Regulatory Board] was told of the position, its chairman knew closely how matters were developing, and the claimant was urging just such a step on all members,” he noted. “The issue was controversial; it had been decided on a casting vote. None of those persons has complained afterwards either.”

The judge said the only conclusion he could draw, was that no one thought then or now that what the officer did had been unauthorised.

Mr Justice Ouseley said he found it difficult to see why the decision should be quashed, even if the claimant were right. “The council has clearly endorsed the process, and indeed adopted the decision. There has been no expression of reluctant acceptance that the officer has sold the pass.”

The judge found that the Regulatory Board had not been misled in granting permission, with the planning officer giving correct advice to approve the scheme.

Mr Justice Ouseley also ruled that a legal officer at Gravesham had correctly advised the Regulatory Board of the risk of turning down the application without proper grounds and that the officers had said none existed which were likely to survive an appeal by the developer.

Cllr John Burden, Leader of Gravesham, said: "This judgment is a total vindication of the council's decision and the professional advice from its officers.....All sides ought to accept this ruling as final and then, at long last, we can proceed to build this desperately needed regeneration project which was originally proposed a decade ago.”

Cllr Burden added: "Members must finally be allowed to do the job they were democratically elected to do. This scheme was approved by the Regulatory Board and the Secretary of State did not call it in for an inquiry. Now the dispute over legal technicalities has been resolved."

Mr Justice Ouseley refused leave to appeal but granted an application by the claimant to extend the deadline to decide whether to seek permission of the Court of Appeal to appeal his judgment by seven days to 28 days.

Cllr Burden argued that an appeal would risk further delay and costs. He confirmed that the council would pursue costs against the claimant.