Development — Planning permission — Environmental statement — Local planning authority requesting further information — Notice published of period for further representations — Planning permission being granted prior to end of specified period — Whether grant of permission ultra vires — Application dismissed
In 2002, the governors of a school submitted an application to the defendant council for planning permission to redevelop the school site to include the development of the school building, and residential and commercial use of the land. The proposal was originally for the construction of a 22-storey tower block but, in April 2004, an amended planning application was made for the construction of a 28-storey complex. On 3 February 2005, an environmental statement was provided for the purposes of the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999 (SI 1999 no 239) and the defendants asked for further information, pursuant to regulation 19(1).
The defendants received the information. On 10 February 2005, they published a notice in the local newspaper inviting representations in respect of the further information to be made within 21 days, in accordance with regulation 19(7). The period for consultation expired at 11.59pm on 3 March 2005. The defendants’ planning committee met on 3 March, at 7.59pm, and granted the planning permission.
Concerns were raised that the environmental impact assessment had been insufficient and that alternative projects had not been considered. The claimant, a company that had been formed in May 2005 to protect the interests of local residents, applied to quash the planning permission, arguing that it had been given in excess of jurisdiction and was ultra vires. It contended, inter alia, that the specified consultation period had not expired and that the defendants had not therefore had the power to determine the application.
Held: The application was dismissed.
Failure to comply with the letter of regulation such as regulation 19 was not necessarily fatal to the survival of a decision. The purpose of that regulation was to provide an opportunity for representations to be made in respect of the further information and, in the present case, that purpose had been complied with: Main v Swansea City Council (1985) 49 P&CR 26; Berkeley v Secretary of State for the Environment, Transport and the Regions (No 1) [2000] 3 PLR 111 and R (on the application of Richardson) v North Yorkshire County Council [2003] EWCA Civ 1860; [2004] 1 WLR 1920 considered.
Bearing in mind that the decision to grant planning permission had been taken after working hours on the last day of the 21-day period, when it was clear that the purpose of the notice had been complied with, and in the absence of any evidence of prejudice, the court would not exercise its discretion to quash the planning permission.
Alan Newman QC and Alexander Dos Santos (instructed by Rafina & Co) appeared for the claimant; David Forsdick (instructed by the legal department of Brent London Borough Council) appeared for the defendants.
Eileen O’Grady, barrister
