Important High Court Judgment on Call-in Procedure and Tilted Balance

06 Jun 2022

Planning and Environment

In R(GOESA Ltd) v Eastleigh Borough Council [2022] EWHC 1221 (Admin), the High Court considered whether a planning permission for a runway extension at Southampton International Airport was lawful.

The case explored the procedure by which the Secretary of State uses his power at s.77 Town and Country Planning Act 1990 to call-in an individual planning application.

The Minister has an express power at Article 31 Town and Country Planning (Development Management Procedure) (England) Order 2015, to restrict a council from issuing a planning decision whilst he decides whether to exercise the power at s.77 of the 1990 Act.

As has become common practice however, the Minister (or the Planning Casework Unit on his behalf) seeks informal undertakings from local councils that they will not issue a permission until he has decided whether to call-in a given application. That saves the need to issue a formal direction under Article 31.

However, Holgate J has found that a local planning authority has a duty to issue a permission as soon as it is ready to do so and that giving an undertaking, not limited in time, to the Minister to not do so would be ultra vires (see paragraphs 60-71).

The case is also of interest for Holgate J’s observations about paragraph 11(d) NPPF. The Judge found that, when deciding whether the “most important policies for determining the application are out-of-date”, it was legitimate to consider whether a given policy was breached by the facts of the case (see paragraph 159).

Dr Ashley Bowes, who represented the Claimant in the case, commented that “the immediate effect of this decision is that it will lead to a rise in the use of formal Directions and a reduction in the reliance of informal undertakings”.

A copy of the judgment can be found here.

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