Ignore errors in planning permissions at your peril

The Court of Appeal has upheld the High Court’s decision in the curious case of three temporary marquees, a backdated decision notice and the judicial review of a planning permission granted nearly six years before the claim was issued.

In September 2010 Wirral MBC resolved to grant conditional permission for the erection of three marquees in the grounds of Thornton Manor. One of the conditions was to limit the permission to a period of five years.

Permission was eventually granted in December 2011 and the decision notice sent to Thornton Holdings, the owner of Thornton Manor. The Council had, however, forgotten to attach to it any conditions.

In May 2012, having realised its error, the Council issued a new decision notice – backdated to November 2011 – which contained ten conditions and made the permission temporary.

Five years on from the grant of the permission, the marquees remained on site. Thornton Hall Hotel, a competitor, urged the Council to take enforcement action. In August 2017, nearly six years after the grant of the permission, the competitor issued its claim for judicial review.

The High Court judge exercised his discretion to extend the time within which a challenge could be brought and quashed Thornton Holdings’ permission.

Dismissing the appeal, the Court of Appeal agreed with the High Court that there were “very special reasons” to grant such a lengthy extension, finding that the judge had exercised impeccably his discretion to quash the permission.

The permission was unlawful, as was the Council’s generation of the fictitious decision notice and its manipulation of the planning register. The Court of Appeal also gave considerable weight to Thornton Holdings’ knowledge of the defective decision notice and its decision to operate in spite of the challenge risk.

The competitor’s failure to check that the permission was consistent with the Council’s resolution did not bar its claim. It had been “reasonably alert” and, when the Council’s error became apparent, proceeded with the claim at reasonable speed.

The Court of Appeal found that this was a case in which the interests of good administration and the credibility of the planning system weighed compellingly in favour of the Court having the opportunity to deal with the Council’s error.

While the Court emphasised that its decision did not set a precedent and that challenges must be brought promptly “in all but the most exceptional circumstances”, this is a clear reminder of the appetite of the courts to intervene to remedy obvious injustices. The expiry of the six week challenge period doesn’t necessarily signal the “all clear” – developers aware of errors in permissions ignore them at their peril.

This blog is adapted from an article which first appeared in Planning Magazine (24 May 2019).

R (oao Thornton Hall Hotel Ltd) and Wirral MBC v Thornton Holdings Ltd [2019] EWCA Civ 737