Law Report: Council was not obliged to compensate landowner

Law Report: 16 December 1997

Where planning consents were found to have been improperly granted by a council because of bias on the part of councillors, the council was entitled to apply to have the consents quashed by way of judicial review, and was not obliged to use its powers under the Town and Country Planning Act 1990 to revoke the consents, thus entitling the landowner to claim compensation.

Regina v Bassetlaw District Council, ex parte Oxby; Court of Appeal (Lord Justice Hobhouse, Lord Justice Millett and Lord Justice Otton) 11 December 1997

The Court of Appeal allowed the appeal of Graham Oxby against the refusal of his application for judicial review by way of certiorari to quash two planning decisions of the Bassetlaw District Council, by which planning consent had been granted to Mr and Mrs Howcoft for the development for domestic housing of two plots of agricultural land owned by them.

The Howcrofts had entered into a joint venture agreement with a Mr Coney, by which he had agreed to apply for planning permissions to develop their land. The applications were granted, in each case against the advice of the council's officers. Subsequent investigations revealed contacts or associations between Mr Coney and members of the council, in particular with the two members responsible for the granting of the Howcrofts' applications.

The council ordered an independent enquiry, which found a failure on the part of some councillors to disclose an interest on certain occasions. It recommended that the council exercise its powers under section 97 of the Town and Country Planning Act 1990 to revoke the improperly granted planning consents. Advice was sought from leading counsel, who advised that section 97 should not be invoked, but that an application should be made for judicial review of the decisions with a view to their being declared illegal and void on the ground of bias. The application, which was made by Mr Oxby as leader of the council and chairman of its Policy and Resources Committee, was dismissed by Mr Justice Popplewell.

David Mole QC and Paul Brown (Sharpe Pritchard) for Mr Oxby; Alun Alesbury (Eversheds) for Mr and Mrs Howcroft.

Lord Justice Hobhouse said that three points had been relied on on behalf of the Howcrofts, who appeared as interested third parties. The first concerned Mr Oxby's locus standi to make the application. The peculiarity of the present case was that the applicant, Mr Oxby, was in effect acting as a representative of the respondent, the council. However, a convenient and appropriate course had been adopted in a similar case, R v Port Talbot Borough Council, ex p Jones [1988] 2 All ER 207, namely that as the council could not be both applicant and respondent, the leader of the council had the necessary standing.

The second point was that the council should have sought the alternative remedy available to them under section 97 of the Town and Country Planning Act 1990 and revoked the planning consents. That would have given the Howcrofts the right to apply under section 107 of the Act for substantial compensation. The council submitted that it would have been a dereliction of duty to not to have sought to have the consents set aside, but to have chosen to revoke them and pay compensation. That was a legitimate and proper attitude for the council to adopt.

The Howcrofts' third point was that the application should fail on grounds of delay. The judgment in R v Criminal Injuries Compensation Board, ex p A [1997] 3 WLR 776 provided valuable guidance on the question. The critical factor in the present case was whether the Howcrofts would be prejudiced by the granting of the relief sought. They could, however, have no legitimate grievance on being deprived of the benefit of planning consents which should never have been granted.

Mr Oxby had established what was necessary to demonstrate that the two decisions in question had been improperly arrived at. Where it had been clearly shown that a planning consent had been improperly granted, then it should be declared void and it was not appropriate that the council should be required to pay compensation.