Planning Court refuses permission for legal challenge over approval of roadside services expansion

Friends of Gillingham (Norfolk) Countryside Community Interest Company argued the council should not have given planning consent for a development by applicant Todhunter, which runs a petrol station and restaurants.

Tim Smith, sitting as a deputy High Court judge, dismissed the application for permission for judicial review as unarguable and said in his judgment he could find neither any legal error nor irrationality in the council’s conduct.

Todhunter in 2023 submitted an application, which was later amended in the face of objections, but members of the friends group said not all of the amended documents were made available promptly, and that re-consultation by the council did not take place as it should have done.

Mr Smith noted all these grounds had been dismissed as being unarguable by David Elvin KC  but had been renewed before him by the claimant.

He noted ground 1 was that planning committee members were misled into believing that a permissive public footpath over the site would be guaranteed available at all times.

After reviewing the relevant meeting, Mr Smith said it was “tolerably clear that the issue of concern to members was not the status and guaranteed public access to the footpath so much as whether its dimensions were adequate.

“The status of the footpath as being only permissive was stated and restated in the debate, and it is not apparent from the debate that members considered it important to somehow guarantee access to it on a permanent basis.”

There was no “failure to secure anything which members were assured would be secured, nor can there be any complaint about unlawful conditions imposed on the grant of planning permission contrary to the principle established in DB Symmetry”.

Todhunter’s original application had included provision for battery storage, which was later removed but this “did not arguably render the development substantially different from that applied for, and that there are no grounds for interfering in the council’s planning judgement to that effect”, Mr Smith said in dismissing the second ground.

He said the third ground assumed that “a failure to follow the relevant practice guidance on the conduct of sequential assessments will always be a legal error entitling the claimant to the grant of relief. I do not accept that that is the case”.

The friends group could only succeed with this argument if South Norfolk’s assessments were irrational.

“On the information before the council, I cannot conclude that this was arguably the case,” Mr Smith said.

The fourth ground alleged the council unlawfully declined to impose a condition related to a contribution towards waste water capacity.

This had been requested by Anglian Water but Mr Smith said: “Officers clearly articulated their reasons for why these criteria were not met by Anglian Water’s request, and – on the evidence – they are not even arguably irrational.

“They exercised their planning judgement and the court will not interfere absent irrationality. I do not see that being present here.”

The final ground concerned environmental impact assessment screening, which Mr Smith found had been carried out correctly and noted: “In truth, the most recent submissions from the claimant on this point have generated more heat than light.”

Mark Smulian