When quashing a planning permission in R. (on the application of Midcounties Co-operative Ltd) v Forest of Dean DC  EWHC 1251 (Admin) the High Court outlined minimum requirements which a public authority should consider when it cannot defend its decision due to financial constraints.
1. Key points
Where a public authority is prevented from defending its own decision in judicial review proceedings, it should at least consider whether:
- it has disclosed all relevant documents;
- it is required to file a witness statement;
- it should file an acknowledgement of service, with summary grounds of resistance, even if only in outline form;
- a representative of the authority (not necessarily a lawyer) should be present in court at any hearing.
The Claimant was the owner and operator of the Co-operative supermarket in the town centre of Cinderford, Gloucestershire. On 2 July 2014 the local planning authority (the "Defendant") granted planning permission to Trilogy Developments Limited (the "Interested Party") for the development of a retail store and related development outside the town centre.
The planning permission under challenge in this case was the third to have been granted by the Defendant for the same proposal since March 2012. The first and second planning permissions were each quashed following successful claims for judicial review brought by the same Claimant.
The Defendant had indicated in correspondence that it could not actively defend the claim for financial reasons but supported the Interested Party in its opposition to the claim.
3. High Court's decision
The High Court quashed the permission on two grounds. First, the High Court found that there was a fundamental defect in the analysis set out in the report (the "Report") presented to the Defendant's Planning Committee (the "Committee"), upon which the Committee based its decision. While the Report noted that the proposed development was likely to have a significant financial impact on the health of the town centre, it did not go far enough in making it clear that the proposed store would remove half of the Claimant’s turnover. It also did not make it clear that the Claimant’s store would be put at risk of closure.
The High Court noted that although the balancing judgment which has to be performed in a case of this type is ultimately one for the Committee alone, it must be properly informed of the various factors which have to be weighed on each side of the balance. The Committee in the present case was not properly informed of the true extent of the harm which the proposed development was likely to cause and therefore the balancing judgment which it performed was vitiated by that error of approach.
Second, section 106 of the Town and Country Planning Act 1990 allows the local authority to impose obligations on the potential developer by way of charges on the land to make the proposed development acceptable. The Report did indeed state that the section 106 benefits were regarded as being “necessary” to make the development acceptable in planning terms. However, the Report did not explain why the section 106 benefits were “necessary” to make the development acceptable. To the contrary, it was explained elsewhere in the Report that the section 106 benefits could be ignored and the development would still be acceptable in planning terms. Accordingly, the High Court found that the approach taken to the balancing judgment which had to be undertaken in the present case was flawed.
As a postscript to the judgment, Mr Justice Singh noted while it is understandable that public authorities are facing increasing financial pressures, the stance taken by the Defendant could lead to tension with certain fundamental aspects of the way in which judicial review proceedings are conducted. The decision of the Court of Appeal in R v Lancashire County Council, ex p. Huddleston  2 All ER 941 established that a public authority defendant in judicial review proceedings has a duty of candour and co-operation to assist the court in understanding its decision-making process and deal with the issues fairly. As such he suggested that if a defendant public authority finds itself in the position where it cannot, for financial reasons, defend its own decision in judicial review proceedings, and in particular where it cannot file a skeleton argument or make oral submissions at a substantive hearing, it should as a minimum consider whether:
- it has complied with its duty of candour and co-operation, by disclosing all relevant documents;
- its duty of candour and co-operation requires it to file a witness statement to assist the court in understanding its decision-making process and dealing with the claim for judicial review fairly;
- it should file an acknowledgement of service, with summary grounds of resistance, even if only in outline form, so that at least the gist of why it maintains that its decision is correct in law is explained;
- a representative of the authority (not necessarily a lawyer) should be present in court at any hearing, so that the authority is in a position to know what is going on and it can rapidly take steps to deal with points which may arise unexpectedly or answer judicial questions if invited to do so.
As Mr Justice Singh noted, it is not unusual for a defendant public authority not to participate in proceedings where it concedes the claim for judicial review but an interested party wishes to resist the challenge and may well be successful in doing so. However, what was unusual in this case was that the Defendant informed the Court that it did not concede the claim and in fact it supported the Interested Party in its resistance to the challenge.
In this case the High Court gave practical guidance to public bodies, facing increasing financial pressures, in complying with their duty of candour and co-operation. Acknowledging the fundamental difference between judicial review litigation and ordinary civil litigation and by allowing public bodies to approach participation in judicial review proceedings more creatively than private litigants, the Court supported the principle that a public body should conduct the litigation with its "cards face upwards". This is because a public body acts in the public interest, and not merely to protect a private, commercial interest. Further, without all relevant documents to understand the decision-making process of the public authority whose decision is under challenge, the Court would be unable to make appropriately considered judgments.