My application for permission to seek judicial review of the planning consent granted to Whitbread for a budget hotel in St Peter’s Street, Colchester, was heard this morning.

The Lord Justice accepted the important principle that if the Planning Committee was under a mistake, whether induced intentionally or inadvertently, as to a material consideration then the planning permission would be liable to be quashed.

The Lord Justice did not dissent from the proposition that the Planning Committee was mistaken, having been misled by Whitbread’s planning statement’s claim that the Queen Street hotel site was “unavailable” when it was, in fact, available, having been offered to Whitbread by the Council itself on 23rd May 2012, but rejected.

He considered the documents before the Planning Committee at the time of the decision in September 2012 which presupposed that the town centre hierarchy in the local development framework applied to the case and that the Queen Street site had preferential status.  He observed that the planning officer had not applied the sequential test at all. The whole thing proceeded on the basis that only one site was available, namely the St Peter’s Street site.

The Lord Justice considered the crucial issue to be whether the Planning Committee’s mistaken belief that no hotel site was available in the town centre was material or not.

He came to the conclusion that the decision, despite being contrary to the town centre hierarchy policy, was saved by the other of what he called “twin track” policies in the local development framework. In his view it was saved by the employment zones policy.

The difficulty my Leading Counsel and I have with this is that on our reading of the local development framework documents (which you can read on the Council’s website), the St Peter’s Street site is not in an employment zone, as defined. It is in a mixed use area, but that is not the same thing. Employment zones are elsewhere in the borough.

The Judge did not deal with the flood zones hierarchy issue at all, probably by an oversight.

However, the civil procedure rules prevent me from taking the case further in the courts. This is very disappointing but I will continue to seek answers to questions that remain, by such means as are available to me.

I have therefore written to the Chief Executive of the Borough Council asking for an enquiry into the following aspects of this case.

First, although during the period when Whitbread’s application was filed and considered by the Planning Committee everyone assumed that the sequential test had to be satisfied, the Planning Committee proceeded in ignorance of the fact that the Queen Street site was available.

Second, the Council switched to a different interpretation of the local development framework when I challenged the planning consent. They said they were wrong before. Either they were wrong before or they are wrong now. Surely the policy framework should be clear.

Third, neither the Planning Committee nor the Full Council was given the opportunity to discuss this matter. The instructions to defend the planning consent did not come from the Planning Committee nor from the Full Council. Surely the councillors are the principals in this matter.

I await a reply.

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