Legal Viewpoint: Rooftop notification error leads to quashing of consent

Planning applications for rooftop extensions are increasingly popular, especially in densely populated cities where not enough land is being brought forward for new housing. A planning application can be made by anyone, even someone without an interest in the land, and without first obtaining consent from the owner.

However, article 13 of the Development Management Procedure (England) Order (DMPO) 2015 requires applicants to give notice of the application to the owner. Non-compliance can be costly, as a recent High Court case from central London illustrates. The freeholder of a six-storey block of flats had obtained planning permission to erect a new dwelling on the rooftop. There were several flaws in the application form and accompanying documents. The development address cited was the claimant’s, a long leaseholder of the top-floor apartment above which the new flat was proposed, and the development involved encroachment into the claimant’s flat.

The applicant was wrongly identified as the sole owner of the land to which the application related and the wrong certificate was issued. Consequently, the local planning authority did not send a consultation letter to the claimant, who thus missed the opportunity to object to the planning application. The council’s statement of community involvement only stated that consultation "may" include notifying adjacent occupiers and, in its absence, a site notice is sufficient to comply with the DMPO requirements.

The claimant launched judicial review proceedings against the council. The planning permission was quashed and the successful ground of challenge was that the notification requirements in article 13 had been breached. The council sought to argue fraud as an additional ground but the case for fraud was not explicit.  Instead, the judge held that recklessly issuing a certificate which purported to comply with the statutory requirements and which contained a statement that was false and misleading justified a quashing order.

The case confirms that the court retains its discretion, when a ground of claim is found to have been made out, whether or not to quash the permission. However, where the parties agree that the DMPO has been breached and where the court finds recklessness in issuing a false certificate, a quashing order is the likely outcome.

A sensible solution would be to resubmit the planning application with the correct details, as the freeholder did in this case. However, this application was later withdrawn because, following analysis of the property rights required to implement a rooftop permission, it appeared highly unlikely that the applicant would ever obtain consent because the residents had taken control of the common parts of the building, including the roof space.

R (Bishop) v Westminster City Council; Date: 15 December 2017; Ref: [2017] EWHC 3102 (Admin)

Linda Boateng is an associate at Russell-Cooke Solicitors who acted for the successful claimant alongside Jack Parker of Cornerstone Barristers.

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