Gemma Duncan (Partner) and William Murrin (Trainee Solicitor), Sharpe Pritchard, discuss the separation of planning and landowning powers and the lessons for councils of a recent High Court judgement.
It is commonly accepted that, with limited exceptions, private landowners can decide who can and cannot access their property. However, the High Court’s judgement in Enterprise Hangars Ltd v Fareham Borough Council [2023] EWHC 2060 is a stark reminder to land-owning planning authorities that they (unlike the general public) must adhere to public law principles when considering certain requests for access or they risk their decisions being the subject of judicial review and potentially quashed.
The judgement in this case held that the council had not complied with its public law obligations when it refused to grant access over its land to a developer (Enterprise). The access request had been made by Enterprise so that it could undertake a survey for badger presence as part of its planning application to the council.
Enterprise’s planning application involved proposed development of part of the council-owned Solent Airport site. An important element of the facts of the case was that the council had already decided (in its capacity as landowner) that it did not support Enterprise’s development proposals as they did not accord with the council’s own vision for development of the site. The council refused the access request, informing Enterprise that it was not willing to sell the land and therefore access to conduct the badger survey was unnecessary. Throughout discussions between the two parties, the council repeatedly asserted that it was able to freely decide who could (and could not) enter the land. The council also indicated that if Enterprise’s development had matched the council’s vision for the site, it would have likely permitted the access request.
It is a well-established principle that local authorities must ensure a proper separation in the exercise of their statutory powers and must not permit one role to influence decisions taken pursuant to a different role. However, decisions cannot be taken in complete isolation and an authority must also ensure that it does not act incompatibly with its other statutory functions. In this case, Mr Justice Lane held that the council’s reasons for refusing access was an example of a council that had fettered its discretion as planning authority through its role as landowner.
The distinction that was discussed by Mr Justice Lane is important. Councils’ planning decisions must be made by considering identifiable planning principles to maintain the wider public’s faith in the planning system. Otherwise, there might be a concern that planning authorities are making use of their role and powers for their own benefit.
It is also important to ensure that planning decisions are procedurally fair. In this case, the council had in fact previously allowed its own planning officers to access the land to determine that badger setts existed near to the planned development site and had as a result (in its capacity as local planning authority) told Enterprise that a badger survey would be required as part of the planning process. However, as access was then refused by the council in its capacity as landowner, it was impossible for Enterprise to comply with this planning requirement. One of the grounds Mr Justice Lane gave for quashing the council’s decision was that the council’s actions had placed Enterprise in a situation that was manifestly unfair. Councils must ensure that they do not use their ‘position as landowner to put the claimant at a material disadvantage in the planning process’.
Put simply, issues of land ownership are not relevant to the planning process and should not be used by planning authorities to stifle development. Whether or not a development site is for sale is irrelevant to the planning application. A landowner can prevent a development from going ahead, irrespective of the grant of planning permission, by simply refusing to allow the land it owns to be sold or developed.
Whilst land-owning authorities do have wide powers of discretion in how they deal with their own land, authorities should remember that this power is not completely untrammeled. The court made it clear that it did not matter that if an ‘ordinary person’ owned the site then they could have refused access; a land-owning authority must act in accordance with public law and the principles of natural justice and procedural fairness when making its decisions.
