Not that black and white: The use of landowner rights by planning authorities

A recent High Court decision has reaffirmed that planning authorities should not invoke their rights as private landowners to stifle planning applications, write Gemma Duncan and William Murrin.

The judgment by the High Court in Enterprise Hangars Ltd v Fareham Borough Council [2023] emphasised that planning decisions should be made purely based on planning considerations. Considerations of the defendant local authority as landowner should not have been a material factor in the planning decision-making process.

Background:                                                              

Fareham Borough Council (‘FBC’) owned land at Solent Airport, which was earmarked for commercial development in the local plan. In March 2022, the claimant, Enterprise Hangars Ltd (‘Enterprise’), submitted a planning application to FBC as the local planning authority, to obtain permission to develop part of the land as live/work hangar buildings.

As part of the application, Enterprise requested access to the FBC site to conduct a survey for the presence of badgers.  FBC refused the request and made it clear that, in its capacity as landowner, it would not sell the land to Enterprise as Enterprise’s plans for residential development of the land did not accord with FBC’s commercial vision for the site.

In further discussions between the two parties, Enterprise repeated the “well-established principle that issues of land ownership are not relevant to the planning process”. However, FBC argued that access could legitimately be refused as this was a matter concerning “land ownership and not planning”.  Eventually, Enterprise proceeded to bring a judicial review claim challenging the legality of FBC’s decision. Shortly after, Enterprise’s planning application was refused; one of the reasons given for refusal was lack of a badger survey.

Judgment:

Enterprise succeeded on all three grounds of challenge. Mr Justice Lane decided that:

1. FBC “fettered its discretion as planning authority” by acting purely as a landowner.

FBC was incorrect in its assumption that it could utilise its rights as a private landowner and should have made its decision solely based on planning considerations. By doing so, it limited the scope of Enterprise’s appeal to the inspector as Enterprise was no longer allowed to benefit from the presumption in favour of sustainable development in the NPPF, because of the absence of the badger survey.

2. FBC’s actions caused a procedural irregularity.

The key question was whether Enterprise had been given a “fair crack of the whip”. It transpired that FBC had conducted its own survey to discover indications of badger presence. However, FBC had rejected Enterprise’s planning application partly due to a lack of a badger survey, which FBC had prevented Enterprise from undertaking. It was decided that FBC “used its position as landowner to put the Claimant at a material disadvantage” and had not acted according to the requirements of procedural fairness.

3. The actions of FBC were irrational.

The justifications given for refusing Enterprise access to conduct a badger survey were described as having “no basis in law” and being “entirely spurious”.

FBC’s reasons for refusal included:

• the survey would disrupt airport business. However, the Airport Manager raised no such concerns and FBC had conducted its own survey.

• to sell the land on a plot-by-plot basis would be disadvantageous. However, this is exactly what FBC originally envisaged.

Ultimately, Lane J quashed the planning decision and said he would consider a mandatory order regarding access for the survey.

Analysis:

It is a well-established rule that local authorities must ensure a proper separation in the exercise of their statutory powers and must not permit one role to influence decisions taken pursuant to a different role. However, in this case the Court held that it was immaterial that if the site had been owned by a private individual they could have legitimately refused consent for the defendant to enter the site to conduct the survey. Lane J stated that local authorities had to act in accordance with the requirements of public law:-

“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 judgment makes it clear that when planning authorities make decisions on planning applications, these decisions must be made based solely on planning considerations. If a planning authority wishes to oppose a development on its land as the landowner, this must not be done as part of the planning decision-making process.

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