Planning permission law: when are you safe from challenge by judicial review?

Planning permission issued in error by Wirral Metropolitan Borough Council (‘the Council’) has been quashed by the High Court some five years after issue, citing exceptional circumstances and public interest.

The Facts

In December 2011, Thornton Holdings (‘the Applicant’) was granted unconditional planning permission to erect three marquees in the grounds of Thornton Manor, a grade II listed building situated in a green belt used as a venue for weddings and corporate events.

The permission was granted with no express time limit, despite the Council’s planning committee agreeing to a number of conditions, one of which being that the planning permission would lapse after five years in December 2016. The Applicant was aware of the error, but did not make the mistake known to the Council.

In August 2017, a rival wedding venue, Thornton Hall Hotel Limited (‘THHL’) sought to bring a judicial review to have the decision quashed.

There are strict time limits within which a decision from a public body can be judicially reviewed. In this case, the grounds for the claim first arose on 20 December 2011 when the planning permission was granted. A claim should have been brought within three months of that date (the time limit has since been reduced to six weeks for planning decisions). As such, an extension of time to bring the claim was also sought by THHL.

Outcome

The High Court quashed the planning permission.

Mr Justice Kerr accepted that the delay was long and that it is unusual to allow a claim to be brought so late, particularly in a context such as planning. However, an extension of time should be granted for the following reasons:

• The extreme lateness of the challenge was viewed to be ‘not as prejudicial to the planning process as lateness usually is’, as the presence of the marquees was not actually contrary to the intended scope of the planning permission until late 2016.
• The Applicant was aware of the error and therefore bore ‘considerable responsibility’ for the lateness of the claim. The Judge stated that had this not been the case, he ‘might well have refused to grant the extension’.
• It lay in the interest of the public in the integrity of the planning process for the extension to be granted in order to rectify the error.

Though Mr Justice Kerr accepted that the omission of intended conditions does not prevent planning permission from having legal effect, he found that nonetheless the planning permission should be quashed, for nine reasons:

1. A clear error was made in granting the planning permission without the intended conditions.
2. Unconditional and permanent planning permission would not have been granted and would not have been in the public interest.
3. The planning process would be ‘subverted’ were the marquees not to be removed, and without quashing the permission, they would not be removed.
4. For the marquees to remain would not be in the public interest, which the Judge stated was more important than the commercial interests of Thornton Holdings.
5. Thornton Holdings was aware of the errors.
6. Thornton Holdings should not have relied on the expiry of the three month period within which someone could bring a claim without bringing the Council’s error to the attention of others.
7. Therefore, Thornton Holdings cannot say it was prejudiced by the quashing due to a loss of bookings.
8. It was seen to be in the interests of good administration to correctly implement planning decision.
9. The Applicant signed a section 106 agreement which included the five year time limit and the other omitted conditions, undertaking in private law the obligations it was denying in the present case. Mr Justice Kerr said this compounded ‘the unconscionably of its position’

Commentary

It is unusual for an extension to judicial review challenge period to be allowed in planning decision-making. It is extremely unusual for extensions to be allowed where the claim is brought in excess of five years’ late. ‘One of the key objectives in our planning system is efficiency in decision-making’; these were the words of Mr Justice Holgate in Parkhurst Road Limited v Secretary of State for Communities and Local Government and the Council of the London Borough of Islington, just weeks after the decision in this case.

This case seems to run counter to Mr Justice Holgate’s assertion. To allow such a delayed challenge seemingly undermines the certainty of the planning process upon which commercial entities place great reliance. If the court will allow legal challenges over five years late, it will be hard to feel assured that any asset is entirely free of planning risk.

Mr Justice Kerr placed substantial emphasis on the Applicant being aware of the error and taking advantage of it as grounds for his decision. There are apparent similarities between that logic and a local authority’s ability to obtain a planning enforcement order from the Magistrates’ Court in the event of the deliberate concealment of breaches of planning control. In this case however, the weight given to the Applicant’s role by the court seems disproportionate when one takes into account the publically available nature of planning permissions. It is recognised that there was some ambiguity in the version of the planning permission on the Council’s website; but are applicants now required to monitor and police the manner in which a local authority performs its own statutory functions?

The case demonstrates the difficult balance that the court must strike between avoiding interference with the provision of public services and the duty to consider what is in the public interest. In this case, the balance tipped in favour of the latter. Whether other courts will follow Mr Justice Kerr’s logic could substantially influence the industry view of risk associated with planning permissions beyond the (now) six week challenge period.

How can Burges Salmon help with your planning issues?

For more information on planning applications and judicial reviews, please contact Liz Dunn or Alex Minhinick.