Challenge in the courts Q & A DCP Section 5.4

This section considers the procedures whereby a planning decision may be reviewed in the courts. A summary of the general scope of the powers of the judiciary in the development control decision making process, including an assessment of the precedent of court decisions, is to be found at (3.2). The use of court injunctions in enforcement cases is discussed at (4.513), and employment of judicial review to contest costs awards is considered at (6.1). Reference should particularly be made to (6.4) where the varied grounds on which the decisions of the Secretary of State or the Planning Inspectorate may be challenged are described in detail.

Q & A    5.4/10

My client implemented a planning permission issued by a local authority. However, this was subsequently challenged by a third party and the court quashed the decision. The local authority is now threatening to take enforcement action against the development. Can the local authority enforce, and if this was tried could it be estopped as my client innocently implemented what was assumed to be a bona fide decision?

I cannot see how a development which had the benefit of planning permission at the time it was carried out, may be the subject of later enforcement action. Reference to section 171A of the Town and Country Planning Act 1990, which provides the basis for local authority powers relating to enforcement, clearly implies that there is a breach of planning control only when development is carried out "without the required planning permission". Therefore your ingenious point about the possibility of a claim for estoppel succeeding is an academic one. The scenario you pose raises a number of interesting points, such as the status of the conditions applied to the quashed permission and the duty of the local authority involved to regularise matters. The views of reader's are sought.

I am a developer and have encountered the following situation a few times. When does the period for making of an application for judicial revue commence where there is a section 106 legal agreement. Is it from the resolution to grant permission or the issue of the permission following the signing of the agreement? I have been given conflicting advice from lawyers, planners and counsel.

The question has been before the courts in several instances, and tests that part of the Civil Procedure Rules which state that an application for leave to apply for judicial review should be made promptly and in any case within  three months from the date when the grounds for application first arose. A body of law has now built up in support of the view that in order to be prompt an application should in fact be made within six weeks. Your question raises the question of  the definition of the phrase  "the date when the grounds for application first arose" and varied interpretations have emerged, perhaps accounting for the conflicting advice you have been given. For instance in R v Breckland District Council ex parte Budgens StoresLtd  [1999] it was judged that the time should run from when the council had resolved it was minded to grant the permission subject to conditions and a legal agreement. This stance was supported in R v Leicester City Council and Wm Morrison Supermarkets plc [1999]. However, in R v Somerset County Council and ARC Southern Ltd ex parte Dixon [  ] it was stated  that if proceedings had been instituted between the resolution to grant permission and the actual grant this would have been premature. It would seem that much depends on an assessment of at what stage in the planning process it is reasonable to rely on an intimated decision being carried through to finality.

A local authority has referred in evidence to a case described in Selected Appeal Decisions, but this seems to be of some antiquity. Do you know anything about this publication?

Beginning in 1947 the Government published a long series under this title which finally came to an end in 1974. Scottish bulletins were also available. The content consisted purely of summaries of cases which were considered to provide interesting interpretations of legal or practice matters raised at appeal. Needless to say the series is long out of print, and has also been excised from the Encyclopedia of Planning Law and Practice. A few of the cases summarised still have relevance to contemporary planning issues, especially those of a legal nature, and it is not surprising to find quotation being made - even today.

Under the new planning regime, the inspector's report on an emerging local development framework (LDF) will be binding on the local authority. However, if an authority subsequently ignores this by granting permission for housing on land directed by the inspector to be protected from development during the life of the LDF, how can an individual or a community group overturn such a move? Is the only recourse through the courts and, if so, what would be the procedure, costs and potential liabilities?

If an authority fails to change an emerging development plan document in accordance with the inspector’s report, the Secretary of State may use his default powers and intervene in order to revise the document. Where an authority is minded to permit a proposal that departs significantly from an adopted development plan, the authority must notify the Secretary of State so that he can consider whether to call-in the application for his own decision. Regardless of any such notification, however, any person may request that an application be called in. But applications are called in rarely and generally only where issues of more than local importance are involved, such as conflict with national policies on important matters.

As there is no third party right of appeal as such, any permission by the authority must be challenged by judicial review through the High Court. This must be made promptly and only on a "point of law". A simple guide to the procedure may be downloaded from the CPRE’s website. The unsuccessful party is likely to be held liable for the legal costs of the local authority and other interested parties, including the developer, and these could be considerable. You should seek advice from a planning barrister.

Under the new plan-making regime, inspectors’ reports on development plan documents are now binding. Authorities are also unable to withdraw a submitted plan unless directed to do so by the Secretary of State. What are the implications of this for legal challenge of an adopted plan and would this be to the authority or the Planning Inspectorate?

PPS12 explains that local authorities must incorporate the changes required by the inspector and, unless the Secretary of State intervenes, adopt the document. Sec. 113 of the Planning and Compulsory Purchase Act 2004 enables a person aggrieved by a document to challenge its validity in the High Court on the grounds that it is not within the appropriate power or that a procedural requirement has not been met. Any such application must be made no later than six weeks after the date of the advertisement publicising that the document has been adopted. A successful challenge would result in the High Court quashing the document wholly or in part, resulting in a need to start work on the document again from the beginning.

An application has been made for a mosque in an area comprising narrow streets of terraced housing with no off-street parking for residents and all available on-street parking is already taken by students and commuters.  Visitors for Friday prayers are estimated in the application at 100 to 150. Cars at the mosque which would be replaced by this new one average around 100, however.  The use is contrary to local plan policies and residents are concerned that permission will be granted for a seriously detrimental use. If permission is granted would that decision be likely to hold up under judicial review? ID.

Judicial review can only be successfully taken if a council makes a legal error in granting planning permission. Such an error could include administrative unreasonableness. Even if a proposal is contrary to policies, it can still be granted provided the council has appropriate reasons. Judicial review is expensive, especially if one loses and has to pay the other side’s costs. If residents have sufficient resources to consider this, it would be sensible to employ a planning consultant or planning solicitor who can monitor the application’s processing and advise if there are grounds for judicial review. It would be also reasonable to warn the council you might consider this. JH.

Permission was granted for a house in the greenbelt on the basis of an applicant's personal circumstances. The applicant indicated willingness to remove a building elsewhere on the site and a condition was imposed requiring its demolition "upon occupation of the new house". It subsequently transpired the applicant did not in fact control this building. The actual owner of this building now faces a demand to demolish it. What is his position if he was not aware of the earlier application as notice was not served upon him? Would the condition imposed upon the earlier approval meet the tests set out in circular 11/95? CN.

The condition was no doubt imposed to protect the green belt’s openness and would be valid and reasonable. Generally it is better to phrase conditions in a negative way and had the condition specified that the proposed dwelling could not be occupied until the existing building was demolished, the council would have been to able enforce its terms. Given what has happened it would clearly be unjust to require the neighbour to demolish his building when he was unaware of the application. The applicant for the new dwelling has clearly committed an offence in completing Certificate A instead of B and could be prosecuted. In addition, however, it might be possible for a third party to apply for judicial review to have the permission quashed. Normally in such circumstances the council’s chairman would make such an application as a council cannot seek to have its own permission quashed. Usually, applications to review permissions have to be made within a short time of the decision, but in this instance, as the illegality did not come to light till later, the courts could well accept a late application. Such an application would also raise human rights issues as the applicant would lose his home, however. Thus, it would be essential to seek legal advice on this. JH.

An inspector recently dismissed an appeal for a single-storey rear dwelling extension as it was inappropriate development that would harm green belt openness.  The appellant included a fallback argument that the extension was only marginally different from what could be built as permitted development.  The inspector agreed that there was a high probability that the appellant would construct the permitted development extension, that such an extension would not be inappropriate development and that it would cause almost identical harm to green belt openness.  However he gave this argument only 'moderate weight' as it was not a completely positive factor. Given his acknowledgement of the similarity between the impact of the extension that he was considering and a permitted development extension, was he right to dismiss the appeal? AB

"Fallback" situations such as buildings which can be constructed as permitted development or still valid permissions which can be implemented generally have weight if the inspector considers the development is likely to be implemented if the appeal is dismissed. Section 4.148 of Development Control Practice deals with this issue in more detail. Having read the appeal you refer to, the decision does seem somewhat illogical and there would appear to be the possibility is could be considered Wednesbury unreasonable, i.e. so unreasonable that no reasonable authority could have decided that way, a test laid down in Associated Provincial Picture Houses v Wednesbury Corporation [1948]. Judicial review would therefore seem a possibility, though this is, of course, expensive. If your client is willing to go to this expense, I would suggest showing it to a planning lawyer for their opinion. JH.

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