Tuesday, 20 April 2010

Challenging delegated decisions

I have noted before that the scope for impugning a grant of planning permission on the ground that the decision could not or should not have been taken under delegated powers is very limited, but a recent example of an attempt to challenge a decision on this ground is provided by R.(Technoprint) v. Leeds City Council [2010] EWHC 581 (Admin). In his judgment, delivered on 24 March 2010, Wyn Williams J quoted extensively from the Court of Appeal decision in R (Springhall) v Richmond-upon-Thames LBC [2006] EWCA Civ 19. That decision had made it clear that the scope for challenging a planning permission on this ground is extremely limited, and that the words of Pill LJ in R (Carlton-Conway) v London Borough of Harrow [2002] EWCA Civ 927 should not be interpreted in a way which would give rise to a separate challenge to planning permissions by reference to the mode by which those decisions had been reached (as distinct from a challenge to the rationality of that decision on general Wednesbury principles).

In Technoprint, as in most other cases, the scheme of delegation authorised the officers to grant planning permission where the application was compliant with adopted policies and/or certain other criteria were met. That in itself involved the exercise of planning judgment (with which the Courts will not interfere, unless it was irrational on Wednesbury grounds), and so it can only be said that the exercise of the delegated power to issue planning permission is ultra vires in such circumstances if the officers’ judgment that the application did meet the criteria giving them delegated power to issue the permission was irrational. There is no distinction between this and the rationality of the officers’ judgment on the planning merits of the application itself. It does not require a two-stage approach. The two issues are subsumed within a single judgment.

In Technoprint, the judge also indicated that he would not have been minded to exercise his discretion to quash the planning permission on this ground in any event, because the complainant had raised no objection to the application being dealt with under delegated powers at the time. In practice, the planning permission was in fact quashed in this case on other grounds, but the challenge on the ground that the officer issuing the decision did not have delegated power to do so was firmly rejected.

Of course, if there is no delegated power at all to grant planning permission in the circumstances of a particular case, then the planning permission might still be challenged on the grounds that the officers’ decision to issue it was ultra vires. If for example, the delegated power is removed by the scheme of delegation where a ward member has requested that the application be referred to committee, then it would be unlawful to issue a delegated decision in those circumstances. Such cases will be fairly clear (and also rare). What Springhall and Technoprint establish is that there cannot be a separate ‘technical’ objection to a delegated decision as distinct from the rationality of the planning decision generally.


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