Court dismisses claim council did not comply with scheme of delegation when granting itself planning permission

A judge has rejected a judicial review challenge claiming that Milton Keynes Council did not comply with its own Scheme of Delegation when granting planning permission for a night shelter for the homeless near a dance studio.

The claimant in Romeo Dance Academy Ltd, R (On the Application Of) v Milton Keynes Council [2022] EWHC 475 (Admin) operates a dance academy and has a lease of part of the ground floor and of the south side of the first floor of The Old Bus Station in Milton Keynes.

On 1 October 2021 the council granted planning permission for a change of use of another part of The Old Bus Station, on the north side, from its use as a youth and community centre to a night shelter for the homeless with 19 beds.

The applicant for planning permission was the council itself.

Twenty-six objections to the application were received from members of the public, three of them from the claimant; all but one of the objections expressed concerns relating to the claimant and the difficulties that would be caused both to the claimant's customers, some of them children, by homeless people congregating outside and also to the homeless who would be sleeping very close to a business where music is played late at night.

The decision to grant planning permission was made by one of Milton Keynes’ officers (Mr Nash), under delegated powers, following consideration of a report prepared by one of the local authority’s planning officers (Ms Dudding), dated 28 September 2021.

The dance academy sought judicial review on the basis that the defendant council did not comply with its own Scheme of Delegation.

Upper Tribunal Judge Elizabeth Cooke, sitting as a High Court judge, said it was well-established that a local authority acts unlawfully if it has adopted and published a scheme of delegation and then does not act in accordance with that scheme (R (Bridgerow Limited) v Cheshire West and Chester Borough Council) [2014] EWHC 1187 (Admin)).

Milton Keynes adopted a Scheme of Delegation in May 2019, which sets out the circumstances in which a delegated decision on an application for planning permission may be made and those in which the application must instead be referred to the Defendant's Development Control Committee ("DCC") or Development Control Panel ("DCP").

The judge said the relevant provisions of the scheme were as follows:

"2. No delegated decision shall be made where the development in the opinion of the delegated officer is likely to be of a controversial nature, taking into account such factors as the scale and nature of the proposed development, the history and sensitivity of the site and the likely level of public interest.

5. No delegated decision on a planning application shall be made if a written request or e-mail to the Head of Planning or nominated officer is received within the specified consultation period i.e. 28 days, giving notice of a representation from;

(a) A Ward Councillor in respect of an application within their Ward.

(b) A Ward Councillor where an application in an adjacent Ward will have an impact on their Ward.

(c) Any Ward Councillor, where with the agreement of the Chair, it can be demonstrated that the environmental planning effect on the Borough of Milton Keynes is significant.

(d) The Clerk or Secretary of a Parish or Town Council in respect of an application within their Parish.

(e) The Clerk or Secretary of a Town or Parish Council where an application in an adjacent Parish will have an impact on their Parish.

(f) In the case of a 'Minor' or 'Other' application or a Tree Preservation Order, 5 or more members of the public from different households.

(g) In the case of a Major application 20 or more members of the public from different households."

Judge Cooke noted that paragraph 2 was independent of paragraph 5, and therefore a planning application may be referred to a committee or panel under one paragraph where such referral would be unnecessary under the other.

The claimant said that Milton Keynes failed to comply with Paragraph 2 of the Scheme of Delegation in the following ways: 

1. The council failed to turn its mind or have regard to Paragraph 2 of the Scheme of Delegation, which was neither mentioned in the Officer's Report nor the Permission;
2. If the council did have regard to Paragraph 2 of the Scheme of Delegation, then it misinterpreted the ambit of Paragraph 2; and/or
3. If the council did have regard to Paragraph 2 of the Scheme of Delegation, then its decision that the development was not likely to be of a controversial nature was taken on the basis of irrelevant considerations and was one which no reasonable decision-maker could have made.

On the first issue, Judge Cooke said the fact that the Scheme of Delegation was not mentioned in the officer's report or the decision notice was not surprising; both documents were concerned with the substance of the application and not with procedure.

There was no basis on which it could be said that the defendant council did not turn its mind to the Scheme of Delegation, she added.

On the second issue, Mr Nash had said in an email responding to Ms Dudding that he believed the majority of the 25 objections were from customers of the dance studio. “With this nature of objection taken into consideration, I don't consider it is in the public interest, taking account of it needing to be of a wider scale of public interest, and thus there is no requirement for it to be presented to DCP or DCC."

The claimant pointed out that Mr Nash never mentioned the key word in paragraph 2, “controversial”.

However, Judge Cooke said the absence of any mention of the word “controversial” did not mean that Mr Nash misunderstood the Scheme or had not read it. “Instead Mr Nash's answer, like Ms Dudding' question, focussed on the only aspect of the application that could possibly indicate a problem about the use of the Scheme of Delegation, namely the public objections. As Mr Henderson [counsel for Milton Keynes] points out, there was nothing else the slightest bit problematic about this application.”

She also rejected a claim that Mr Nash used the wrong test when he said that he did not consider that it was "in the public interest" to refer the application to a committee or panel.

“Far from misunderstanding the Scheme he was homing in on its purpose. I take the view that that is likely to have been what Mr Nash had in mind,” the judge said.

“The words he used are not a precise enunciation of the test in paragraph 2 because none was needed. The important point, reading that sentence as a whole, is that he focused on the only possible indication of controversiality, namely the scale of public interest in the application.”

The judge said it was obviously relevant that the majority of objections came from the claimant's customers. “This is indicative of the likely level of public interest, which is low. There is no groundswell of opposition from surrounding properties or the wider public.”

The judge concluded on issue 2 that she saw no reason to infer that Mr Nash had misunderstood the Scheme of Delegation.

On the third issue, an irrationality or Wednesbury challenge, Judge Cooke said this was a high threshold for the claimant to meet.

She did not agree that Mr Nash took into account irrelevant considerations. “On the contrary, the nature and source of those objections was central to what he had to consider, which was whether the application was likely to be controversial bearing in mind the level of public interest, and they indicated that it was likely to be low.”

The judge also warned against falling into the error of a forensic analysis of a brief email exchange between colleagues. It was clear from Mr Nash’s summary in his email that he was aware not only of the source of the objections but also of their nature.

The claimant argued that the following facts supported its case that the officer's decision that the development was not likely to be controversial fell outside the range of reasonable decisions open to him: the number and nature of the objections; the fact that paragraph 5 of the Scheme of Delegation would have required the application to go to a committee if 5 or more members of the public from different households had requested a referral; the nature of the development; the fact that the application for planning permission was made by the council itself.

However, Judge Cooke said those four factors did not in her judgment cast any doubt on the reasonableness of the council’s decision.

Considering section 31(3C) and (3D) of the Senior Courts Act 1981, the judge said that, had she found any flaw in Mr Nash’s reasoning, she would have taken the view that a committee or panel would have granted permission.

Judge Cooke concluded: “Paragraph 2 of the Scheme of Delegation states that the scheme is not to be used where "in the opinion of the delegated officer" the matter is likely to be of a controversial nature. Mr Nash took that decision in accordance with the Scheme. I see nothing that even comes close to being Wednesbury unreasonable in his decision, nor do I see that any irrelevant considerations were taken into account. The Claimant's application to quash the decision is refused.”