High Court quashes decision by council to refuse access to land it owned to carry out badger assessment

Fareham Borough Council failed to separate its roles as landowner and planning authority in a dispute about whether badgers are present at Solent Airport, a High Court judge has concluded.

The judicial review was brought by developer Enterprise Hangars, which had wanted to build nine mixed-use live/work hangars for the aviation sector at the airport.

Mr Justice Lane said Fareham had concluded it was reasonably likely badgers were present and so Enterprise Hangars needed to provide a habitat survey with its planning application.

But the land in question is owned by Fareham, which refused to provide Enterprise Hangars’ advisor with access to undertake the assessment. The council then cited the lack of such an assessment among reasons for refusing the application.

Enterprise Hangars argued this was unlawful and sought orders quashing the decision to refuse permission and to require Fareham to give access to carry out the survey.

Solent Airport is in the Daedalus area, which is recognised in the local plan as Fareham’s most significant commercial development area with aviation-led employment.

In March 2015, Fareham bought 369 acres of land comprising the airfield and two adjacent areas to be developed in line with a Daedalus ‘vision’.

Enterprise Hangars applied for planning consent in March 2022 and later that month asked for access for a ground survey for signs of badgers.

The airport’s management agreed, but Fareham planning officers were copied in and the council’s head of strategic sites said in an internal email: “The applicant is asking for access to the site in order to progress his planning applications.

“We are not going to sell him the site and don't want the development on our land. I am minded to refuse. What is your view?”

The council then told Enterprise Hangars in an email: "Unfortunately there has been some confusion with approvals. Whereas the planning department would have no issues with the inspection, the landowner does not give consent to this request and therefore denies any access.

“As landowner, they have already advised that they will not sell the land required for this development."

Enterprise Hangars then contacted council leader Sean Woodward, who said in response: “You have no right to access private property without the land owner's consent. That consent has not been given. The same applies to using a drone, which given this is an airport, is expressly forbidden.”

In November 2022, Farnham refused Enterprise Hangars’ planning application for 13 reasons. The developer said four of these related directly to protected species and so could not be answered without it challenging the legality of the council’s refusal of access.

Lane J was told that Enterprise Hangars had three grounds of challenge.

The first was that Fareham fettered its discretion as planning authority qua landowner, falling into error by acting as a private landowner for the site and as the planning authority.

Ground two claimed procedural irregularity, that in its position as planning authority, Fareham gave Enterprise Hangars an unfair and impossible material consideration to answer.

Its third ground was irrationality, in that issues of land ownership are not relevant to the planning process and should not be used by planning authorities to stifle development.

In Enterprise Hangars Ltd v Fareham Borough Council [2023] EWHC 2060 (Admin) Lane J said: “There is an essential difference between the position of the defendant and a private landowner. The defendant is a planning authority, entrusted by Parliament to discharge its functions as such in accordance with the principles of public law.

“Accordingly, the defendant cannot exercise the rights that it would otherwise have as a landowner, if and to the extent that this would inhibit its ability to decide applications for planning permission according to law.”

The first ground succeeded because Fareham’s stance was that development in line with its Daedalus vision would be impeded were any residential elements permitted, such as the live/work units.

“That is, however, manifestly a planning issue, to be decided, in the first instance, by the defendant qua local planning authority, rather than by the defendant qua landowner,” the judge said.

He said Enterprise Hangars could appeal against a rejection of an application but Fareham’s refusal to allow the badger survey would mean the ‘tilted balance’ in favour of development was unavailable to deploy before an inspector.

The ground was thus made out “irrespective of the nature and responsibilities of those who decided to refuse the claimant access in order to undertake the survey”.

Lane J added: “It is immaterial that, if Solent Airport had been owned by a private person who refused access, the defendant could not have done anything about the matter. Local authorities have to act in accordance with the requirements of public law.”

He went on to find it was “impossible to escape the conclusion that [Fareham] has simply not acted as a rational local authority should.

“It has put forward justifications for refusing to let the claimant inspect for badger activity, which have no basis in law and which, in certain respects, are entirely spurious.”

Lane J quashed the planning decision and, subject to submissions from counsel, said he was minded to include a mandatory order regarding access for the survey.

Mark Smulian