Judge rejects challenge to grant of planning permission for major development amid allegations of procedural irregularities, predetermination and bias

Questions were also raised about the conduct of the meeting and whether bias was involved.

His Honour Judge Jarman KC, sitting as a judge of the High Court, said in his judgment in a case brought by local campaign group Greenfields, that while some procedural irregularities had occurred, these had been overtaken by events.

Developer Westridge Village had applied to build 473 homes and various amenities on agricultural land near Ryde,

“The process leading to the grant was long and controversial,” the judge noted, with Greenfields bringing its judicial review challenge on five grounds.

These were: that the planning committee meeting that gave permission was procedurally improper; the grant was also vitiated by the appearance of bias on the part of the chair Cllr Ian Brodie; that the authority failed to publish a draft and a completed planning obligation in breach of Article 40(3)(b) of the Town and Country Planning (Development Management Procedure) Order 2015; the council unlawfully deferred consideration of whether a financial contribution towards highways improvements should be required; the authority took into account an immaterial consideration, and/or acted irrationally and/or was materially misled by officers in relying upon financial contribution towards highways improvement proposals as mitigating an identified adverse impact of the development.

Isle of Wight denied all these grounds, with the support of Westridge. It argued the first three grounds related to the original planning committee meeting of July 2021 and so were out of time and that the remaining two were incorrect.

The court heard a detailed officer's report was prepared for the July 2021 meeting which referred to more than 500 objections and a petition with more than 4,000 signatures against the application.

Lengthy disputes arose over who should and should not vote at the meeting and whether some councillors had predetermined themselves or were merely predisposed against the application.

An eventual vote saw it rejected by four votes to three, but members then became concerned that they did not have a robust planning ground for this decision and so the council might have to pay costs on appeal.

The committee then voted again and this time accepted the proposal but with a greater component of affordable housing.

In August 2021, solicitors on behalf of residents wrote to the authority setting out several serious procedural concerns about the meeting, but the council’s principal lawyer said there had been no breach of legislation or procedure which required the matter to return to the planning committee.

But in December 2021 the solicitors wrote again, having taken counsel's advice, saying the resolution was fundamentally unsafe because of procedural irregularity, misdirection as to legal basis of part of the decision and apparent bias.

Further meetings were held with the decision unchanged but the application returned to the committee in March 2023, after comments from Natural England that it should consider using the section 106 agreement for additional curlew habitats mitigation land,

The committee could not decide whether to revisit the whole application or confine its discussions to curlews but eventually allowed the application once again.

HHJ Jarman said the July 2021 resolution was a material consideration in the eventual grant of permission and so the challenges were brought within time. He did though reject them all.

The judge said procedural irregularity had occurred when Cllr Brodie told a Cllr Price not to attend, rather than leaving it to Cllr Price's own decision, and there was a further irregularity over the exclusion of a Cllr Lilley.

He said Cllr Brodie had been entitled to be concerned about predetermination, which had been raised by Westridge, and about whether planning grounds existed to refuse the application.

“To the extent that those members who were predisposed against the application found it humiliating to be reminded of this principle then that is a consequence of the tension which sometimes arises between the democratic process and the obligation on councillors to implement planning policies,” the judge said.

He found that Cllr Brodie’s conduct “does not support a finding of apparent bias or that he proceeded for an improper purpose”.

The judge was also not satisfied that members were misled over the section 106 agreement or that the calculation of the financial contribution for highways from the developer was wrong.

HHJ Jarman concluded: “To the extent that there are or may be criticisms of the procedure at the July 2021 meetings, in my judgment those have been overtaken by events.

“It is clear that in that meeting there was a failure to identify sustainable grounds on which to refuse the application…when the matter came back before the committee in April 2023, the members were advised that the July 2021 resolution was a material consideration but it was a matter for them individually as to the breadth and length of the debate.”

That meeting had had an officer's report with a recommendation that the application should be granted and “in my judgment that was a proper process, with which this court should not interfere”.

Greenfields said in a statement: “We believe there are errors and gaps in the judges reasoning and is open to appeal.”

Mark Smulian