Case No. CO-9102-2010

Limited v Birmingham City Council [1994] Env. LR 298 at 307-8.23.Whilst I see the force of that argument, I do not consider that it is either necessary or appropriate to proceed on that basis in the present case; not necessary because, even applying the recognised lower threshold test of arguability, the application for permission fails for the reasons set out hereafter, not appropriate because, unlike in the Mass Energy case, I am not convinced that the Court has heard all the evidence or argument which might be adduced at a full judicial review hearing if permission were granted.24.Turning to the various grounds advanced by the Claimant, as Mr Village QC and Mr Sharland for NFC Ltd point out in their Skeleton Argument, the first ground on which the Claimant seeks to challenge the Council’s decision in fact involves two distinct challenges to that decision:(1)A challenge based on procedural unfairness that the Council acted unfairly in that the NFC Ltd financial report and the DVS independent review were not provided to the Claimant;(2)An allegation that the Planning Committee should not have made its decision without first seeing the financial report and the DVS independent review, because by doing so, the Committee failed to have regard to a material consideration.25.Dealing first with the question of procedural fairness, it is not in dispute that, in granting planning permission, a council must act fairly and that what is fair depends upon all the circumstances of the case. Mr Richards submits that fairness requires that enough information is made available to enable an intelligent response by someone in the position of the Claimant who may wish to object. He goes on to submit that, in a case such as the present, the information that was made available should have included NFC Ltd’s financial report and the DVS independent review.26.The Council and NFC Ltd do not challenge the general principle that sufficient information should be made available to enable an intelligent response to the planning application to be made, but contend that this does not require financial information which is confidential (and which has not in fact been seen by the Planning Committee when making its decision) to be disclosed to objectors. In support of that contention, they rely upon the decision of Ouseley J in