Planning headline judgments over Easter

If you were away during the Easter break, you may have missed some important judgments in the planning world. In this article, we take a look at four of the key planning judgments from the last few weeks which stand out to us as being of particular interest.

They are wide ranging in content and relate to Use Class E, legitimate expectation, publishing a s106 agreement and considering potential benefits caused by the commercial production of hydrocarbons.

Scope of Use Class E: West Suffolk Council v Secretary of State for Levelling Up, Housing and Communities and others [2025] EWHC 861 (Admin)

There have been a number of appeal decisions about the scope of Use Class E (of Schedule 2 to the Use Classes Order 1987) since it was introduced in September 2020, and this High Court judgment handed down on 10 April 2025 by Mrs. Justice Lang provides the judicial view on specific points.

West Suffolk Council (“WSC”) applied for statutory review under section 288 of the Town and Country Planning Act 1990 of an Inspector’s decision, alleging it wrongly considered that land and buildings in Suffolk, operating as an Animal Health Trust, fell within Class E. WSC argued that the wording in Class E requiring ‘the provision of medical or health services, principally to visiting members of the public’ should mean services available to the public without prior restrictions.

They contended that the Inspector incorrectly classified referral-based services under Class E, as these do not align with the concept of visiting as a member of the public. Additionally, WSC argued that ‘the research and development of products or processes’ should focus on tangible products or processes, such as new medicines or manufacturing methods, and that the Inspector’s inclusion of research papers advancing human knowledge did not meet this requirement.

The Court rejected the claim and clarified that to fall within Class E, premises must be used, wholly or partly, for providing medical or health services to visiting members of the public. Decisions are highly fact-specific, and general conclusions should not be drawn from specific cases.

However, the Court noted that the local authority had incorrectly imposed a requirement that services must be available to ‘passing’ members of the public who ‘walk off the street’. The Inspector also found sufficient evidence that the site was used for research and development pf products or processes, specifically for medical or health purposes.

Legitimate Expectation: R (Grantchester PC) v Greater Cambridge Partnership [2025] EWHC 923 (Admin)

Legitimate expectation is one of the grounds of judicial review which is often hard to make out. On 14 April 2025, Mrs Justice Lieven set out her findings on this in depth along with the parameters for oral evidence.

Before outlining Lieven J’s findings, it is worth reviewing the facts. This case concerned the judicial review of a decision taken by the Greater Cambridge Partnership (GCP), a joint committee consisting of three different local authorities, in respect of the ‘Greenways Project’ (the “Project”) to establish a network of greenways connecting various outlying villages to the centre of Cambridge.

The Claimant argued against the Project with particular focus as to the proposed ‘Haslingfield Greenway’ (the “Greenway”) which if promoted would pass through the village of Grantchester. The Claimant submitted that it had obtained a substantive legitimate expectation, arising from an un-minuted meeting between the Claimant, GCP’s Head of Transport and the Leader of the South Cambridge District Council (SCDC) who was, at the time, also one of the three members of GCP’s executive board (the “Meeting”), that the Greenway would not go ahead where a majority of Grantchester residents opposed it. GCP proceeded with the Greenway and the Claimant brought its case giving rise to a question of primary fact for which it was down to the court to resolve.

On 20 September 2024 Lang J, granted judicial review on two grounds concerning:

1. Whether there was a legitimate expectation that the proposal would not proceed if contested by residents; and
2. Whether any rational decision maker would have undertaken further investigation as to whether a promise had been made (invoking the principle in Secretary of State for Education v Tameside MBC [1977] AC 1014 (the “Tameside Duty”).

What makes this case notably unusual is that Lang J, in granting permission for the judicial review, ordered five witnesses (all attendees of the Meeting) to be cross-examined. This order is best explained by Lieven J’s own references to the following cases: Gestmin v Credit Suisse [2013] EWHC 3560 and Jaffe v Greybull Capital LLP [2024] EWHC 2354 both of which assert, among other things, that (1) just because a witness is honest and confident in their recollection does not translate to reliable truth, (2) the importance of documentary evidence, and (3) the inherent probabilities associated with truth and fact.

Following the three-day trial in which all five witnesses were cross-examined, Lieven J ultimately dismissed the claim on the first ground on the following bases:

1. The level of detail and specificity required to establish an appropriate legitimate expectation will depend on the context and consequences of the promise question. In this instance, such a promise, if given, would have considerable implications to the Project and it would have had to be ‘particularly clear and unequivocal’. The evidence was such that this threshold could not be met.
2. That allowing the claim to succeed in finding legitimate expectation arising from the Meeting could open the floodgates to other such claims which would make it more difficult for those representing public authorities to have honest conversations without impeding the intention and efficacy of such meetings; and
3. That even if the finding of fact in this case is incorrect and such a promise had been given, it would not be reasonable for the Claimant to have relied upon such a promise allegedly given especially considering that the Leader of the SCDC was only one of three members of the executive board of the GCP (a multi-authority body).

She also dismissed the claim on the second ground on the basis that there was no legal obligation upon GCP to undertake any further investigation and that the GCP had acted rationally in taking the steps they had taken to assess the facts underpinning the Claimant’s case.

Publishing a s.106 agreement: Greenfields (IOW) Limited v Isle of Wight Council [2025] EWCA Civ 488

On the same day, the Court of Appeal handed down its judgment on the legality of a planning permission which had been granted by the Isle of Wight Council (IOWC) who had failed to publish the associated section 106 agreement on its register. Prior to the grant of the planning permission, which related to a development including 473 dwellings at Westridge Acre Park, neither a copy of the draft or final section 106 agreement had been placed on the planning register by IOWC, contrary to the requirements under Article 40(3)(b) of the Town and County Planning (Development Management Procedure) (England) Order 2015 (“DMPO”).

The Court rejected the respondent’s argument that including the Heads of Terms of the agreement in the officer’s report amounted to substantial compliance with the DMPO, reasoning that the terms did not describe what the contribution is, they merely informed the public that a financial contribution would be agreed. Also rejected by the Court was the ground that the appellant could not be said to have been prejudiced since they had not requested the section 106 agreement, as the absence of the request for the agreement alone is not sufficient to determine an absence of prejudice.

Notably, in determining whether the appellant had been prejudiced, the Court mentioned that the fact that a person had not requested a copy of the section 106 agreement could be a factor in deciding whether someone was interested in the agreement and therefore relevant to the issue of prejudice. However, in this case, there was other evidence to indicate that the appellant was interested (and therefore would be likely to comment on) the section 106 agreement, such as the fact that they checked IOWC’s website to see if a copy was available, that they were residents in the area who were deeply interested in and concerned by the proposed development, as well as the fact that the financial contribution proposed was not sufficient for the highway improvements required. Therefore, whilst in this case the appellant was found overwhelmingly likely to have commented on the proposed development, it does not necessarily mean that other instances will have the same result if there is no evidence that the appellant was interested and would be likely to comment on the agreement.

The planning permission was quashed after considering whether Parliament intended for non-compliance with the obligations under the DMPO to result in invalidity. Following the approaches in R v Soneji [2005] UKHL 49, [2006] 1 AC 340, and A1 Properties Ltd v Tudor  Studios RTM Co Ltd [2024] UKSC 27, [2024] 3 WLR 601, they found that the purpose of the article was for members of the public to be able to comment on agreements.

Hydrocarbon Exploration and Appraisal: Frack Free Balcombe Residents Association v Secretary of State for Housing, Communities and Local Government, Angus Energy Weald Basin No 3 Ltd and West Sussex County Council [2025] EWCA Civ 495

The Court of Appeal has also been engaged in considering an appeal from the High Court relating to the grant of planning permission for the exploration of a site for a commercially viable hydrocarbon resource, located in the High Weald Area of Outstanding Natural Beauty (“AONB”). The permission had originally been refused by West Sussex County Council, but was subsequently granted on appeal.

The Court of Appeal had to consider whether there had been an error in considering the potential benefits, but not the harms, caused by the commercial production of hydrocarbons if a viable resource were found. Since the development was proposed in an AONB, the exceptional circumstances and public interest test applied. In light of government policy in paragraph 209 of the NPPF, which gives great weight to the benefits of mineral extraction, the Inspector had concluded that the development was justified due to national need, as the UK faces the challenge of ‘reducing energy demand and maximising economic production from declining domestic oil and gas reserves.’

The Court of Appeal upheld this conclusion, stating that the economic advantages were inherent in the exploration and appraisal stages, and did not depend on a future proposal. They referred to Europa Oil and Gas Ltd. v Secretary of State for Communities and Local Government [2014] EWCA Civ 825; [2014] PTSR 1471 which held that ‘mineral extraction’ in NPPF policy refers to not only production, but exploration and appraisal.

When it came to talking about the ‘disbenefits’ of the development, the Court referred to and R. (on the application of Preston New Road Action Group) v Secretary of State for Communities and Local Government [2018] EWCA Civ 9 which held that the application for exploration did not need to consider the ‘disbenefits’ of production since they were not relevant to the decision on exploration, with no similar discussion on whether disadvantages were inherent.

The Court referred to the fact that a separate application to extract hydrocarbons would be required if a viable resource was found, in which an Environmental Impact Assessment would be carried out. Although the underlying themes of causation and eventuality sound familiar from the case of R (on the application of Finch on behalf of the Weald Action Group) v Surrey County Council and others [2024] UKSC 20, there was no reference to the Supreme Court’s decision. However, it is worth noting that Finch concerned an application for extraction of hydrocarbons, rather than exploration which doesn’t have inevitable downstream results.

How can we help?

Our Planning and Compulsory Purchase team has extensive experience in advising on how key issues being considered in Court impact in practice on proposals being promoted under the TCPA, DCO and CPO regimes. Please contact Alex Minhinick, Sarah Sutherland or George Packer for more information.