Town council fails in judicial review challenge to planning permission for 85-home scheme

The High Court has dismissed Hayle Town Council's judicial review application challenging Cornwall Council's decision to green-light an 85-dwelling development.

In Hayle Town Council, R (On the Application Of) v The Cornwall Council [2023] EWHC 389, Mr Justice Lane concluded that a decision by Cornwall's planning committee to grant permission would not have needed to consider an earlier decision by Cornwall’s leader to withdraw from a project to upgrade a nearby roundabout as a material consideration.

Cornwall granted planning permission for the 85-dwelling development in the Cornish town of Hayle in May 2022 two months after its leader chose to withdraw from the £12.9m scheme with Homes England to upgrade the roundabout near to the land earmarked for the 85-home development.

The town council voiced an objection to the plan a year prior to the approval, as it heard that "Highways would not support any further housing applications" until the roundabout had been updated and improved.

But Cornwall forged on despite Hayle's objection, leading to the judicial review challenge.

At the High Court, Hayle sought to quash the planning permission on the basis that Cornwall's planning committee failed to take into account the leader’s decision to withdraw from the roundabout upgrade scheme.

The judge noted that counsel for both sides were in agreement as to the "main issues" in this case, which were:

1. Was the Leader's Decision a new factor which the rational decision-maker would regard as being so obviously material that it was realistically capable of causing the defendant to reach a different conclusion on the planning application, with the consequence that that new factor should have been taken into account before planning permission was granted?
2. If yes, pursuant to section 31(2A) of the Senior Courts Act 1981, is it highly likely that the outcome for the claimant would not have been substantially different if the defendant had taken the Leader's Decision into account in the determination of the planning application?
3. Remedy, if applicable, and costs.

The judge relied on the following hypothetical question, which was posed by Hayle's counsel, Stephen Whale, that: "If, during the Committee meeting, the Leader had entered the room and told the Committee that she had decided, on behalf of the defendant, that it should withdraw from the delivery of the Loggans Moor upgrading scheme, would the Committee realistically have reached a decision to refuse the application?"

In considering the question, the judge concluded that "the answer would be resoundingly in the negative".

"Applying section 38(6) of the Planning and Compulsory Purchase Act 2004, determination of the application fell to be made in accordance with the development plan unless material considerations indicated otherwise," he added.

"Drawing on the [officer's report handed to the West Sub-Area Planning Committee], the Committee would have said that the application remained in accordance with the Development Plan and that the Leader's Decision did not have any material impact.

"The proposed development remained one which would have no significant effect on existing traffic infrastructure, including the Loggans Moor roundabout."

"Accordingly, the claim fails for this reason," he concluded.

Adam Carey