Balancing act

In the past, planning decisions favoured developers, but now the courts are getting tough and putting the consideration of the public first. Richard Harwood reports on the need for compromise

Balancing a tripod depends on the length and positioning of the legs. Get it wrong and the platform is at best uneven, and at worst will topple over. The planning system also rests on three legs: speed, quality and public acceptability of decision-making. This year the courts have moved decisively to re-position these legs, and now the proper consideration of the public interest, the involvement of the public and compliance with procedure has moved to the fore.
Concern for the interests of developers has, in the past, caused the courts to excuse procedural non-compliance. Informal waivers of conditions have been sanctioned, estoppels found, procedural requirements considered directory rather than mandatory, and discretion exercised not to quash decisions. Great speed was required in the bringing of judicial review proceedings to quash planning permissions. However, with a new century the tide began to change. The House of Lords in Berkeley v Secretary of State [2001] emphasised the need to comply with Environmental Impact Assessment (EIA) legislation and almost entirely removed the court's discretion to excuse EIA errors. In R v Leicester City Council ex parte Powergen [2000] the Court of Appeal caused consternation in some quarters by requiring the adherence to the wording of a planning permission.
A series of decisions in 2002 has increased the importance of procedural compliance and tilted the balance from developers towards the public. In R v East Sussex County Council ex parte Reprotech (Pebsham) Ltd [2002], the House of Lords abolished the doctrine of estoppel in public law. Lord Hoffmann said the public interest needed to be protected and that the public should be allowed to participate in decision-making. If a developer could effectively acquire a right by estoppel, these interests would be frustrated. Protection for the developer was to be left to public law concepts of legitimate expectation and abuse of power. This protection is not great: in what circumstances is it an abuse of power to allow the public to be consulted under statutory procedures?
The approach was quickly followed by Mr Justice Sullivan in R (Henry Boot) v Bassetlaw District Council [2002]. He held that a planning permission had expired because various conditions had not been complied with. A local authority could not, under modern planning legislation, agree to waive compliance with conditions because there was a clear statutory procedure, involving public consultation, by which developers could change conditions. The judge observed: “It is important at all times to remember the public nature of Town and Country Planning. It is not a matter for private agreement between developers and local planning authorities.” Consequently “an experienced developer… advised throughout by competent lawyers who were well versed in planning law” lost a 315 house scheme.
Mr Justice Richards summarised the new approach in Coghurst Wood Leisure Ltd v Secretary of State [2002]: “It is obvious that the judgments in Powergen and Reprotech mark an important change in direction in this area of planning law. Looked at together, they emphasise not just the need to apply public law concepts rather than private law concepts, but also the importance attached in public law to a statutory body's powers and duties and to the wider public interest. It cannot be assumed that exceptions previously found to exist will still apply. Substantial reappraisal is required.”
A standard response of developers and local authorities to planning judicial reviews was to argue that the challenge was out of time. Many of those arguments succeeded and sound criticisms were being put out of court. Decisions became confused, inconsistent and full of quirks and sub-rules. Few lawyers understood the case law and none could predict the outcome in a particular case. It was, as Lord Steyn said, “a recipe for sterile procedural disputes and unjust results”.
The House of Lords swept away most of the decisions in R (Burkett) v London Borough of Hammersmith & Fulham [2002]. It moved the time of necessary challenge back to the final act, the granting of planning permission, rather than the earliest possible moment of complaint. Lord Steyn explained policy considerations supporting the approach in the context of public rights. The rules might otherwise “deprive a citizen of the right to challenge an undoubted abuse of power… such a challenge may involve not only individual rights but also community interests, as in environmental cases”. Simplicity and certainty was a primary factor “where the application of the procedural regime may result in the loss of fundamental rights to challenge an unlawful exercise of power. The citizen must know where he stands. And so must the local authority and the developer.” Given the burden of preparation and financial risks on judicial review applicants it was “unfair” to subject them to such uncertainties.
Lord Justice Sedley said in R (Kides) v South Cambridgeshire District Council [2002] that Burkett opens “a new chapter on time bars in public law”. All subsequent cases where the courts have heard argument on the promptness of judicial review applications have been decided in favour of the claimant.
The landscape has shifted and continues to move. Strict compliance with the terms of planning permissions and procedural requirements is now essential as those mechanisms protect the public interest and the interests of the public. They cannot be dispensed with in an informal fashion. Planning judicial reviews are increasing in number and the courts are less prepared to block claimants on procedural grounds. Developers and their professional advisers now need to be much more careful and cannot be confident that major schemes will survive challenge. The French marshall Vicomte de Turenne observed: “God is on the side of the big battalions.” He was corrected much later by Voltaire, who said: “God is on the side not of the heavy battalions, but of the best shots.”