Judge rejects legal challenge to grant of planning permission in dispute over whether committee could impose condition requiring 12 metre ecological corridor

A High Court judge has dismissed a judicial review challenge of BCP Council’s decision to grant full planning permission for a substantial mixed use development in Bournemouth.

The claimant in Suliman, R (On the Application Of) v Bournemouth, Christchurch and Poole Council [2022] EWHC 1196 (Admin) lives in an adjoining street and her property backs on to the site. She objected to some aspects of the application for planning permission.

Her grounds of challenge were:

i) The council erred in law when officers advised the Planning Committee that it could not impose a condition requiring that the ecological corridor along the North West boundary of the site should be "at least 12m in width". The council's error was to proceed on the basis that it had no power to impose such a condition.

ii) The council acted in breach of the claimant's legitimate expectation by failing to conduct a visit to her property to review the impact of the proposed development on the outlook towards the site.

Mrs Justice Lang rejected the claim.

She said that, in her view, on the facts of the case, it was “rational for the officers and the Chair to conclude that the result of imposing Councillor Hall's condition [extending the ecological corridor to 12 metres] would be a development which, in substance, was not that which was applied for, and therefore it would breach the Wheatcroft principle [Bernard Wheatcroft Limited v Secretary of State for the Environment supra at p240, Johnson v Secretary of State for Communities and Local Government [2007] EWHC 1839 (Admin)]. On the facts, I consider that it would have been irrational for the Committee to reach any other conclusion, and so the planning officers were right to advise Members that they could not take this course.”

The Planning Court judge said such a condition would also have been Wednesbury unreasonable, and so failed to meet the third limb of the Newbury test [Newbury v Secretary of State for the Environment (1978) 1 WLR 124], “as it conflicted with the description of the development and the layout plan which the IP was bound to implement if the application for planning permission was granted”

Mrs Justice Lang said: “Therefore, if the Council had voted in favour of Councillor Hall's proposed condition, extending the ecological corridor to 12m, it would have breached the substantive limb of the Wheatcroft test and it would have been imposing a condition which was Wednesbury unreasonable, contrary to the third limb of the Newbury test.

“If the rest of the Committee supported Councillor Hall's proposed condition on its merits, realistically the only lawful option open to Members would have been to refuse the application for planning permission. In this case, there was no point in adjourning the meeting to enable the planning officers to discuss the matter further with the IP, with a view to the IP revising the proposed scheme, as the IP had already made it clear that it was not willing to make such changes. In the event, it appears from the transcript of the debate at the meeting, and the voting, that there was little support for Councillor Hall's proposed condition among other Members.”

On ground 2 the judge considered that the claimant had failed to establish that the council made a clear, unambiguous and unqualified representation that the committee would visit her property, and so no basis for a legitimate expectation arose.