An extraordinary judgment in the High Court has left the planning profession questioning why the Judge quashed a planning permission issued by the local planning authority six years ago.

Thornton Hall Hotel Ltd, R (On the Application Of) v Wirral Metropolitan Borough Council [2018] EWHC 560 (Admin)

Following this judgment purchasers of property and developers who want to be certain about the planning status of their property and irrespective of the age of the consent and the expiry of a judicial review period, will potentially need to look behind a planning consent and be satisfied that it reflects what the committee actually intended.

The case, arguably very specific on its facts, was a challenge, by Judicial Review, of a planning permission issued in December 2011 for the erection of three marquees at sites within an estate in the Wirral. The claimant owned and operated a nearby hotel and was a competitor of the Interested Party who was the recipient of the planning permission for the marquees.

The local planning authority should have issued the planning permission on a temporary basis for five years, with the marquees to be taken down in December 2016, and another nine planning conditions agreed by the planning committee. A mistake at the local planning authority meant that the actual planning permission that was issued failed to state any planning conditions and therefore the recipient got an unconditional planning permission. The claimant in this case and the local planning authority say that the granting of the unconditional planning permission was a mistake. The local planning authority did not contest the judicial review claim. The Interested Party submitted that the unconditional planning permission should stand but remained silent about the mistake.

The Judge had three issues to consider to grant – (a) an extension of time to pursue the judicial review bearing in mind the decision was taken 6 years ago, (b) if the extension of time is granted, are the merits of the claim properly arguable, to allow permission to proceed with the claim and (c) if it arises, whether the claim should be allowed and appropriate relief granted.

The Judge had the following reasoning and conclusion;

  1. He granted the extension of time even though the planning permission was issued 6 years ago and many years out of time. The judge commented: ‘47….I accept that the delay has been long and that it is unusual, particularly in the planning context, to allow a claim to be brought so late. However….I think the interested party bears considerable responsibility for the lateness of the claim because it knew of the error and chose to remain silent about it’ and ’48….the extreme lateness of the challenge is not prejudicial to the planning process…In this case, the presence of the marquees was not contrary to the intended scope of the planning permission and contrary to the LPA’s decision until December 2016. Their presence only became malign, if at all, in late 2016, not in 2011’ and ’50. But on the facts as they appear before me, I think justice requires that the extension of time be granted so that the interest of the public in the integrity of the planning process is not excluded from consideration by this court. The public interest lies in the court having power to rectify the error. That public interest is represented by the statutory planning powers of the LPA. On judicial review of the exercise of those powers where a mistake has led to illegality, its guardian is the Administrative Court.’
  2. The Judge then gave the following nine reasons;
  • ‘The first and most obvious reason is that the error was made. The planning permission that was issued is not as it should be. The authority delegated to officer level to issue the permission, plainly was not intended to include authority to undo the committee's decision that the permission should be conditional. That would fly in the face of the committee's decision to accept the recommendations in the report to the committee.
  • The second reason is that unconditional and permanent planning permission to erect the three marquees and keep them there would not have been granted and would not have been considered as being in the public interest. The permanent presence of the three marquees was inappropriate development in the Green Belt; their presence was only regarded as acceptable because of the difficult financial position, the threat to the condition of the gardens which were in decline, and by reason of the limited duration of the permission, which preserved the power of the LPA to review the position from time to time.
  • The third reason is that if I do not grant the relief sought, the marquees need not be removed, ever. Unless the LPA decides otherwise, they should be removed. Their presence at Thornton Manor ought to have ceased in December 2016 unless a fresh permission had been granted, application for which was deliberately not made. If the marquees are now allowed to stay permanently, the proper operation of the planning process will have been subverted.
  • Fourth, that would be contrary to the public interest. I asked Mr Lockhart-Mummery QC at the hearing whether he wanted to make any observation about the public interest in this case. His answer was to the effect that it must give way and that it was inevitable in cases of this kind that this must be so. I respectfully disagree. I think it is more important than the commercial interests of the interested party, at least on the facts of this case.
  • Fifth, among my reasons for taking that view is that the interested party was aware of the error. If it had not been, it would have said so in its evidence. Mr Landor with commendable candour admitted that as long ago as 22 December 2011 he was aware of the inconsistency between the permission as issued and the permission as envisaged by the planning committee. It is safe to infer that he raised the issue with his client, the interested party, and that the latter chose to remain silent about the inconsistency.
  • Sixth, it follows that the interested party ran its commercial operation at Thornton Manor from 22 December 2011 knowing that the presence of the marquees after 19 December 2016 would be, at the very least, a matter of possible controversy and possible legal challenge. It was not, in my judgment, realistic to rely on expiry of the three month limitation period without also bringing the issue into the open, which the interested party decided not to do.
  • Seventh, it follows that I am not impressed by the argument that the interested party would be prejudiced by the grant of relief, because it accepted bookings in good faith, up to the year 2020, on the strength of the unconditional planning permission of which it had the benefit. It was only able to enjoy that benefit by keeping silent about the obvious error that had been made. Its decision to accept bookings at a time when the presence of the marquees would be legally precarious, was one made at its own risk and peril.
  • Eighth, it is said by the interested party that it would be detrimental to good administration if the marquees have to be removed. Normally, detriment to good administration in public law cases relates to the undesirability of interfering with the provision of public services rather than commercial interests. I see no detriment to good administration in rectifying the error. I think it is detrimental to good administration that the marquees are still there. Good administration includes correct implementation of planning decisions.
  • Ninth, the interested party signed the section 106 agreement embodying the omitted conditions including the five year time limit. Yet, it proceeds in this litigation as if it were not bound by the terms of that agreement. That seems to me only to compound the unconscionability of its position. It undertook in private law the same obligations as it denies in public law.’

This case seems to follow the recent cases on deception and concealment in planning enforcement in that the Courts will look to any opportunity to ensure no-one benefits from an error by keeping quiet about a situation hoping that the timescale for taking action be it by judicial review or enforcement expires. Some might argue that this now opens the floodgates for judicial review claims to be brought out of time in every case. It seems certain that there will be Judicial Reviews coming forward which will seek to rely on this judgment. This might be one for the Court of Appeal to sort out in the near future, otherwise the system as we know it will be fundamentally changed.