The High Court has quashed an unconditional and permanent planning permission which had been granted in December 2011 on the basis of an error by the local planning authority (LPA).
The error, being the omission of conditions including a five-year time limit which had clearly been envisaged by the planning committee, did not render the planning permission void from the start, but did leave it open to challenge. When such a challenge materialised, the court held that there were good reasons for allowing the claim to be heard outside of the usual strict time limits in such cases. Hearing the claim, the court decided that, given the obvious error, to allow the permission to remain in place would subvert the public interest in the integrity of the planning process. The permission was therefore quashed (R. (on the application of Thornton Hall Hotel Ltd) v Wirral MBC).
The owner of a listed building and historic gardens (the "landowner") within the green belt applied for planning permission for the erection of three marquees on its property in 2010. Although the planning report made available to the LPA's planning committee noted that the marquees were inappropriate development within the green belt, the extra income which would be generated by the functions hosted in the marquees would allow the deteriorating historic gardens to be restored. This constituted sufficiently special circumstances to overcome the usual presumption against inappropriate development on the green belt. Accordingly, the report recommended the grant of planning permission subject to conditions. One such condition was that permission should be for a limited period of five years, to enable the state of the historic gardens and their financial position to be re-evaluated.
The planning committee resolved to accept the report's recommendation and to grant permission subject to the suggested conditions, including the five-year time limit. However, when the local authority granted the permission, no conditions were set out in the decision document.
When the intended five-year period expired in December 2016, the marquees remained in place. The claimant, a local hotel, made a judicial review application challenging the LPA's decision. The hotel argued that the mistaken omission of the conditions meant that the permission should be quashed and that there was a public interest in allowing the claim to be heard despite the long delay since the grant of the permission.
In response, the landowner contended that the hotel's claim was many years late and no extension should be granted. It argued that the three marquees were lawfully erected and, according to the permission, they could remain in place indefinitely. The landowner had also accepted a large number of future bookings which it would not be able to fulfil if the marquees had to be taken down.
The issues and decision
The High Court identified three main issues to be decided in the case:
- Whether an extension of time should be granted to allow the hotel's application to be heard.
- The legal effect of the flawed unconditional planning permission.
- Whether the existing planning permission should in fact be quashed.
The court accepted that it was highly unusual to allow a judicial review claim to be brought so late, particularly in the planning context. However, in granting the extension of time, the court held that much of the responsibility for the claim being brought late rested with the landowner because it had known about the error in omitting the conditions to the planning permission, but had kept silent about it. It was important that a court should have the opportunity to rectify any mistake by an LPA and it was therefore necessary to allow the extension of time.
As to the legal effect of the flawed planning permission, the court reinforced the now reasonably well established position that such permission is not void from the start, but is valid and effective until such time as it is quashed.
That left the question of whether it was right that the permission should be quashed and the court decided that it was. The erection of the marquees was inappropriate on the green belt and the clear intention had been to grant permission for a limited period only due to the precarious position of the historic gardens which were threatened and in decline. This would have limited the impact of the marquees on the green belt and would have given the LPA the opportunity to re-assess matters in five years' time. It was in the public interest to uphold the proper operation of the planning process as had been intended by the LPA. It was accepted that there would be a significant impact on a large number of customers of the landowner who held future bookings, but the public interest in the integrity of the planning process was a more important concern.
Implications of the decision
The High Court's judgment is a reminder to those with the benefit of a planning permission that such permission is not bulletproof, even after the expiry of the usual strict judicial review application timescales. Extensions of time may be granted, which might allow an LPA's decision to be challenged many years down the line. Being granted a planning permission which one knows is based on a mistake or error is not, therefore, a cause for celebration.
Parties relying on planning permissions should note the importance the court placed on the unconscionable conduct of the landowner in this case, in choosing to keep silent about the LPA's error of which it was aware. The landowner also deliberately did not apply to renew the flawed permission to avoid bringing attention to the mistake.
The court made clear the paramount importance of maintaining the integrity of the planning process. It is hard to envisage facts on which any future court would conclude that such integrity is outweighed by other considerations. Those with the benefit of planning permission over which there might be any doubt would be well-advised to seek legal advice at an early stage. It may be appropriate to declare such concerns to, and seek clarification from, the LPA.
The judgement also provides a useful reminder to applicants and planning authorities that there is no power to withdraw a planning permission once granted on the basis of an administrative error (Gleeson Developments Ltd v Secretary of State for Communities and Local Government ) nor can an effective planning permission be altered by issuing an amended notice of planning permission (Holder v Gedling Borough Council ).
Contributor: Matt Battensby