Olivia Barton reviews a case where the court had to consider whether to quash a planning permission or whether it could remain intact, even though all parties agreed that it was unlawfully granted.
In Stratton v The London Borough of Enfield and another [2022] EWHC 404 (Admin), the court has given a helpful reminder of the circumstances in which it can refuse to grant relief and of the distinction between section 31(2A) of the Senior Courts Act 1981 and its general power to withhold relief.
The facts
The London Borough of Enfield granted planning permission for a single-storey side and rear extension to Enzo Di Paola’s property. Antony Stratton, the claimant and owner of the neighbouring property, sought to quash the planning permission.
The plans which were submitted in support of the application incorrectly indicated that Stratton’s neighbouring property had been extended along the boundary that it shared with the application site. Stratton objected to the planning application and pointed out the error in the plans. The council’s officer recorded the objection in his report but not the comment regarding the inaccuracy of the plans. It was clear the planning officer mistakenly believed that Stratton’s property had been extended as shown in the plans.
Following the commencement of judicial review proceedings, Di Paola then applied for a further “retrospective” planning permission for a larger extension pursuant to section 73A of the Town and Country Planning Act 1990, which was granted by the council (notwithstanding that the works had not yet been carried out). This second permission was not challenged and the statutory challenge period expired prior to the hearing having commenced. Works commenced under the section 73A permission.
The case centred on whether the court should grant substantive relief under section 31(2A) of the Senior Courts Act 1981, which imposes a duty on the court to “refuse to grant relief on an application for judicial review … if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”.
The submissions
The council submitted that the applicant had a fall-back position (based on permitted development rights) and therefore this would have been a material consideration in favour of the grant of permission.
Linked to this, the council argued that the court should have regard to “expediency” on the basis that permitted development rights meant that the council would not have taken enforcement action if the development had been carried out without planning permission.
It also submitted that the court could have regard to the second permission in informing its consideration of whether to quash the first permission, notwithstanding that it had been granted after the decision on the first planning permission had been made.
The claimant submitted that the factual error was pivotal to the officer’s decision to grant the first permission. The fall-back and enforcement positions were not referred to in the officer’s report. The second permission had not even been granted by that time. The court was not in a position to second guess what decision the officer would have come to had the error not have been before him.
The decision
Mr Justice Smith recited the well-established tests for refusing to grant relief under section 31(2A):
- where a defendant asserts that relief should be withheld, it bears the burden of proving that it is highly likely that the outcome would have been the same, which is a high hurdle;
- the court must look back at the facts as they were known and applied by the council when it granted the permission;
- the court must consider what the result would have been had the error not occurred, and whether the same result was “highly likely” but must do so without itself taking the role of the officer – this is an objective assessment, not a subjective test.
Smith J held that the second permission was irrelevant, as was the “fall-back” argument, as there was no evidence that either had been in the mind of the officer when the report was written. The council’s submissions on the likelihood that no enforcement action could be taken fell into the same category. The duty to refuse to quash the permission under section 31(2A) did not apply.
Discretion
The council separately requested the court to exercise its general discretion regarding the granting of relief on the basis that to do so would be unnecessary or futile.
Smith J clearly distinguished the section 31(2A) duty from the court’s general discretion to withhold relief, describing the former as a “sub-set” of the latter.
Given the existence of the second permission, Smith J therefore found that quashing the first permission would serve no worthwhile purpose and that the claim was therefore “academic”.
Accordingly, the court declared the first permission had been granted unlawfully but declined to quash it on the basis of its general discretion not to grant substantive relief where to do so would be academic.
Practice points
When facing the threat of a judicial review, whether as a result of a mistake or otherwise, this case reminds us of the court’s general discretion to withhold relief. Defendants should consider whether the “defect” subject of any claim can be remedied by a subsequent consent or approval.
Conversely, claimants should ensure that their grounds of claim are broad enough to preclude a “quick fix” by the defendant. They should monitor any subsequent permissions granted carefully to ensure that they are challenged alongside the underlying permission.
Olivia Barton is an associate in the planning and environment group at Ashurst LLP
