Legal Viewpoint: Parties rally round to save technically flawed consent

A former hospital, a grade II listed building, a sensitive landscape and nearby homes may not be the obvious setting for a 2.5-kilometre test track for performance cars.

However, a company using the site for manufacturing rally cars sought to establish such a facility, prompting extensive objections. A detailed and comprehensive officer's report recommended granting permission, and the council committee agreed.

A neighbour sought a judicial review on three grounds, two of which were rejected by Mr Justice Holgate. However, one aspect of the third troubled him. After detailed and careful analysis, he found that the council had failed to impose LAmax levels to control peak noise or variations in noise character from vehicles using the track. He rejected the council’s interpretation of the relevant condition and concluded that an assumption that LAmax would be controlled was fundamental to its willingness to grant permission.

The judge’s approach thereafter merits consideration. He held that the public interest in the development proceeding made it preferable to allow the parties to try to remedy the flawed condition, rather than quashing the permission. He therefore gave the parties his draft judgment and allowed them time to provide a mechanism to secure what the council had intended. 

After an exchange of submissions and further hearings, the matter still could not be agreed. The judge then suggested using powers under section 96A of the Town and Country Planning Act 1990 to make non-material amendments. An application was made and subject to public consultation. Despite the claimant’s concerns, the judge was ultimately satisfied with the amended condition and exercised his discretion not to quash the permission, while still declaring the original condition unlawful. On that basis, he accepted the claimant’s bid for costs. The council agreed to pay £26,125 plus VAT to the claimant.

The case demonstrates a judicial determination to uphold permissions where a technical defect can be put right. This seems a sensible and practical approach. Defendants should always consider, before and throughout the judicial review process, whether they are vulnerable on any aspect that could be addressed via a section 106 obligation or a section 96A amendment. The earlier this is done, the greater the prospect of reducing costs liabilities. Perhaps more importantly, applicants may at least be able to save the planning permission.

R (Nicholson) v Allerdale Borough Council; Date: 12 October 2015; Ref: [2015] EWHC 2510 (Admin)

Stephen Morgan is a member of Landmark Chambers

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