Court quashes large Birmingham housing scheme owing to failure to publish financial viability assessment

The High Court (HHJ Emma Kelly) has quashed the grant of outline planning permission (ref. 2025/01204/PA) for a mixed-use scheme at Druids Heath Estate, Birmingham. The proposal included the phased demolition of the existing estate and construction of up to 3,500 new residential units and new commercial, community and education spaces.

The planning permission was granted on 7 November 2025 after Birmingham City Council applied to itself for the proposal. The application was granted following a Committee meeting at which voting was tied 6-6, pursuant to the casting vote of the Chair.

Although the Birmingham Development Plan required residential developments of more than 15 dwellings to deliver 35% of the proposed units on site as affordable housing, the application for planning permission sought to secure only 11.4% on the basis that this was all that was financially viable, the Council relying on Financial Viability Appraisal (FVA).

The full FVA was not made available to the public or to members of the Planning Committee. Only a short executive summary was published.

A long-term resident of the Druids Heath Estate brought a claim for judicial review of the grant of planning permission on the following grounds:

Ground 1: the decision was taken in breach of the requirements of objectivity and transparency and the duty to make appropriate arrangements for functional separation under regulation 64 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017, given that the Council was both the applicant and the decision-maker.

Ground 2: the Council misdirected itself in law and/or failed to take into account a material consideration, namely the Council’s statutory duties to meet the Decent Homes Standard in maintaining its existing social housing stock.

Ground 3: by failing to make available for inspection the full FVA, the Council breached s. 100D and s. 100F of the Local Government Act 1972 (LGA 1972), as well as the requirements of procedural fairness and national policy.

A local residents’ group, the Druids Heath and Monyhull Forum, also brought a separate judicial review on grounds which included a failure to comply with the public sector equality duty and various failings regarding the Council’s treatment of infrastructure contributions.

On 8 January 2026, the Council agreed to the quashing of the planning permission on the basis of ground 3 of the first claim. It agreed that the full FVA was a “background paper” within the meaning of s. 100D(5) LGA 1972 and was required to be disclosed. It could not be “exempt information” as it falls within paragraph 9 of Schedule 12A, i.e. it “relates to proposed development for which the local planning authority may grant itself planning permission or permission in principle pursuant to regulation 3 of the Town and Country Planning General Regulations 1992”.

The Council accepted that, on the facts of this case and following the approach in R (Worcestershire Acute Hospitals NHS Trust) v Malvern Hills DC [2023] EWHC 1995 (Admin) at paragraphs 141-142, Parliament would have intended that a failure to comply with s. 100D would lead to the permission being invalid. This was for the following reasons:

(a) the significance of the issue of affordable housing to the overall merits of the scheme;

(b) the importance of the full FVA to the recommendations to councillors made by officers;

(c) the fact that publication of the full FVA had specifically been requested by a number of interested parties; and

(d) the fact that Parliament has by paragraph 9 of Schedule 12A specifically identified the importance of transparency in decision-making where local planning authorities apply to themselves for planning permission.

The parties agreed that the other grounds of review became academic and did not require determination at this time. On 2 February 2026, HHJ Kelly confirmed a consent order that had been filed to this effect.

Given the planning permission has now been quashed, the parties agreed that the Druids Heath and Monyhull Forum’s separate judicial review claim had become academic, and that claim was withdrawn with the Council paying the Forum’s costs.

The matter will now need to be re-determined by the Planning Committee.

Matthew Fraser and Charles Bishop acted for the successful claimant, instructed by Tessa Burwood and Kasper Meidell at the Central England Law Centre.

Alex Shattock acted for the Druids Heath and Monyhull Forum, instructed by Julia Eriksen, Rowan Smith and Madeeha Akhtar at Leigh Day.

More information is available here:

• The BBC
• Planning Resource (paywalled)