In a decision of the High Court (R (Thornton Hall Hotel Limited) v Wirral Metropolitan Borough Council [2018] EWHC 560 (Admin)) Mr Justice Kerr allowed the claimant's application for an extension of time of over five years, and granted the claimant relief by quashing the decision of the Local Planning Authority (the 'LPA') from as long ago as December 2011.

Key Points

  • Despite the three month time limit for bringing a claim in judicial review (as in force at the relevant time), the court will allow a claim to be brought well outside the time limit where there are significant factors in favour of it doing so.
  • The court put the public interest ahead of the substantial hardship to commercially interested parties when considering whether the granting of relief would be likely to be detrimental to good administration
  • The court had little sympathy for the arguments concerning detriment to the interested party (the 'IP') since it had been aware of the legal flaw in the planning permission but had chosen to remain silent.

Background

In 2006, the IP erected marquees on its land without planning permission, for the purpose of hosting functions and events. The claimant owns and operates a nearby hotel and is in competition with the IP. Despite an enforcement notice being issued by the LPA in 2007 the marquees remained in place.

In April 2010 a planning application was made in respect of all three marquees resulting in a planning committee meeting in September of the same year. At this meeting a report was adduced in which it was noted that the marquees constituted "inappropriate development within the Green Belt" requiring "very special circumstances" to be shown to "outweigh any harm caused" if permission were granted.

The report recommended permission be granted subject to a section 106 agreement and referral to the Government Office for the North West. It also included 10 recommendations for conditions to be imposed on the permission, including that permission be for a limited period of five years.

On 11 November 2011 an agreement was made under section 106 of the Town and Country Planning Act 1990 conditional on the granting of 26 April 2018 planning permission including the imposition of the 10 conditions proposed by the report.

On 20 December 2011 the LPA gave notice of grant of planning permission however this erroneously omitted any conditions, despiteclearly stating that planning permission was "subject to the following conditions".

The court considered that the IP or its agents were aware of the mistake from 22 December 2011 but kept silent and did nothing to disabuse the LPA of its understanding that that permission would lapse after five years. In the intervening years the IP's agents made numerous applications to the LPA to discharge various of the conditions of the permission but none as to the condition for limited time. They made these applications in addition to applications for extensions to and conversion of areas of the marquees.

The LPA proceeded on the basis that the planning permission was due to expire on 11 November 2016 and when this date passed they told the IP that a fresh application would be required to continue using the marquees. It was common ground that the decision notice did not faithfullyreproduce the decision made by the planning committee and that this was likely to be as a result of human error.

The claim was eventually brought by the claimant on 23 August 2017; a month after a report was published highlighting the mistake that the LPA had made.

Judgment

Despite the time limit for bringing a judicial review claim having expired by between 5 and 6 years Kerr J permitted the extension of time, allowed the claimant's claim to proceed and quashed the planning permission.

A key factor in Kerr J's reasoning was that the IP should bear considerable responsibility for the lateness of the claim because it knew of the error and chose to remain silent about it. He accepted that it would have been far better if the claim had been adjudicated before the expiry of the five year limit of the permission and that if that had been the case the prejudice to the IP or the public would have been negligible. He stated that but for the IP substantially contributing to the lateness of the discovery he may well have refused the extension.

Kerr J considered that without granting the claimant the extension and the relief sought the marquees could remain in situ forever and would essentially amount to the granting of permanent unconditional planning permission, which would be contrary to the public interest.

In his submissions counsel for the IP directed Kerr J to s.31(6) and (7) of the Senior Courts Act 1981 under which the granting of relief may be refused if the court considers that the granting of relief will be likely to cause substantial hardship to, or substantially prejudice the rights of, any person, or would be detrimental to good administration. Counsel contended that detriment to good administration arose because the IP had reasonably accepted bookings up to the year 2020 on the strength of the planning permission being unlimited in time. Kerr J was unimpressed by this argument holding that such bookings could only be taken due to the benefit derived to the IP from remaining silent about the obvious error that had been made. He also noted that detriment to good administration in public law cases related to the provision of public services rather than commercial interests and that it was detrimental to good administration to allow the marquees to stay in place.

Comment

This case highlights the dangers in parties relying on the mistakes of public bodies, especially where those mistakes are known to the parties. In this case the IP would have been well advised to make the LPA aware of its mistake and ensure that all parties were proceeding on the same basis.