High Court refuses claimant permission for ninth shot at judicial review over same development site

A High Court judge has refused a claimant permission for a ninth claim for judicial review over a 400-home development approved by Canterbury City Council.

The refusal from Mr Justice Chamberlain in Swire, R (On the Application Of) v Canterbury City Council [2023] EWHC 1533 (Admin) follows a string of previous refusals. One judge, Mr Justice Stuart-Smith, described some of the claimant's arguments as "lacking either realism or merit" and "more than faintly ridiculous".

The legal battle between Camilla Swire and the city council has been ongoing since 2018 when Canterbury granted outline planning permission (OPP) to the development.

Swire launched a judicial review challenge of the planning decision, but this was refused. She then applied to the Court of Appeal for permission to appeal the decision but was rebuffed.

Swire brought two further claims challenging consequential decisions, the first challenging the approval of a masterplan under a specific condition of the outline planning permission.

The second claim challenged an amendment to the timing of the initial earthworks. Both of these challenges were dismissed by Holgate J in January 2022, who described the arguments as "excessively legalistic", "hopeless", "untenable", and "wholly wrong".

Five further claims by the claimant for judicial review of approvals under the OPP's conditions were subsequently withdrawn.

The claim at hand in the most recent decision challenged a decision to grant reserved matters approval for a spine road pursuant to a specific condition of the outline planning permission.

Permission was initially refused on the papers by Lang J before the application was renewed before Chamberlain J.

Swire advanced the following two arguments at the High Court:

1. The council failed to consider whether certain changes to anticipated infrastructure, which, it was said, were key to the granting of the OPP, amounted to a change of circumstances such that a revised Environmental Impact Assessment (EIA) was required. It was said that this failure amounted to a failure to take account of a material consideration and/or a breach of reg. 9 of the EIA Regulations.
2. The application for reserved matters approval was in breach of the EIA Regulations because it involved "salami slicing".

The term "salami slicing" refers to an alleged attempt at circumventing the objectives of an EIA Directive and the EIA Regulations by dividing what is in reality a single project into separate parts and treating each of them as a 'project'.

Chamberlain J refused permission for the judicial review challenge, finding that neither ground was reasonably arguable.

He said: "Like Lang J, I have concluded that it is not reasonably arguable that there is a public law flaw in the decision and that permission should therefore be refused."

Adam Carey