Pritpal Singh Swarn, head of planning law at Spearing Waite, assesses a recent case that allowed a successful legal challenge a full six years after planning permission was granted.

If you’ve secured planning permission, anyone aggrieved with the decision has six weeks, from the date the planning was granted, to bring a legal challenge.

This window for a legal claim (known as a Judicial Review) was reduced from three months to six weeks in July 2013 and, since 2013, there has been a considerable body of case law upholding this strict time limit.

However, a recent case has allowed a successful judicial review six years after planning permission was granted.

The learned judge, Mr Justice Kerr found that exceptional circumstances meant a challenge could be brought long after the normal time limit for judicial review.

Six years, I hear you scream!

In Thornton Hall Hotel Ltd, R (On the Application Of) v Wirral Metropolitan Borough Council [2018] EWHC 560 (Admin), planning permission had been granted by Wirral Metropolitan Borough Council for a set of marquees at Thornton Manor.

Wirral council’s planning committee recommended granting planning permission for a temporary (five year) period, and for the marquees to be removed in December 2016.

Pritpal Singh Swarn, planning law solicitors Spearing Waite Leicester
Pritpal Singh Swarn, Spearing Waite

Due to an error, the Local Planning Authority (LPA), actually issued a planning permission to Thornton Manor that was unconditional – ie: with no time limit.

The Claimant (Thornton Hall Hotel), owned and operated a nearby hotel and was in competition with Thornton Manor for hosting weddings and functions

Thornton Hall and the LPA argued the granting of the unconditional planning permission was a mistake. The Thornton Manor meanwhile submitted that the unconditional planning permission should stand but knew of the mistake and remained silent.

The marquees remained in place after December 2016 with bookings continuing to be taken.

The Judge had three issues to consider:

  • In the interest of justice, should a judicial review be allowed, even though the planning permission was granted 6 years ago;
  • If the extension of time is granted, are the merits of the claim properly arguable, to allow permission to proceed with the claim; and
  • If it arises, whether or not the claim should be allowed and appropriate relief granted.

Mr Justice Kerr commented: “I am satisfied that the decision notice did not faithfully reproduce the decision made by the planning committee and that the cause of the error is likely to have been, at least, human failing.”

He said he would allow the case out of time as Thornton Manor “bears considerable responsibility for the lateness of the claim because it knew (our emphasis) of the error and chose to remain silent about it”, adding “In my judgment, the court should now exercise its power to rectify the error by quashing the permission.”

The Judge gave the following nine reasons for allowing the claim so long after the original planning permission was granted:

  • A mistake was made, and the permission was issued not as it should have been.
  • The permanence of the three marquees was held not to be in the public interest because their presence was only regarded as acceptable because of the difficult financial position and 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 presence of the marquees ought to have ceased in December 2016 unless a fresh permission had been granted, an 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.
  • On the facts of the case, it would be contrary to the public interest, to leave the marquees in situ.
  • Thornton Manor was aware of the error.
  • From 22 December 2011 despite 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, Thornton Manor continued to run its business and take bookings for the marquees. It is unattractive then to assert that the claimant and the LPA bear responsibility for the delay in the matter coming to light.
  • Not impressed by the argument that Thornton Manor 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.
  • 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.
  • Thornton Manor signed the section 106 agreement with a set of conditions including the five-year time limit for the marquees. 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.

Cases that allow a legal challenge to planning permission outside of the six-week window are few and far between but most definitely not unheard of.

I acted for Mr Kershaw in the case of R (on the application of Jeremy James Kershaw v Cherwell District Council 2012 [EWHC] Admin, where we successfully quashed a planning permission several years after it was granted.

Mr Kershaw argued that the grant of planning permission had elapsed and a judicial review was granted.

Whilst the cases that depart from the strict timeframe for mounting public law challenges are rare, there are several key lessons for those who obtain the benefit of a planning permission:

  • Make sure there are no obvious mistakes, with planning permissions granted under a scheme of delegation,
  • Double check any recommendations set out by a planning committee and ensure these are directly transposed into the planning permission where required,
  • Conduct must be beyond reproach. When asking the Courts to grant equitable relief, one must practice equity. The equitable maxims would apply and in this case…. He who seeks equity must do equity!

For expert legal advice on any of your planning related challenges, contact the planning law specialists at Spearing Waite.

 

Share this article