Planning permission – Judicial review – Error in grant – Delay – Defendant council granting planning permission for holiday chalets – Defendants subsequently allowing application for additional chalet and altered design and layout of development — Second permission omitting condition restricting residence – Whether second permission relating to all chalets or additional chalet – Whether permission to be granted for judicial review on ground of error in grant – Whether inordinate delay in seeking relief – Declaration in favour of interested parties – Permission to apply for judicial review refused
The claimant was the leader of the defendant council. In 2003, the defendants had granted outline planning permission to the interested parties for the erection of eight holiday chalets on land in a rural location. The permission, as later amended, contained a condition prohibiting the use of the chalets as permanent residences and provided for an annual closure period during the winter months. Reserved matters were approved in 2006. In 2007, the interested parties applied for planning permission for one additional chalet. The application related to the same area of land as the previous permission, but the attached plan showed nine chalets in a markedly different layout from that for which reserved matters approval had been given; the application was also stated to involve a difference in the type of chalets to be built. The defendants allowed the application and granted permission that allowed for “one timber chalet in addition to” the other eight and for the amended layout. The 2007 permission erroneously omitted a condition restricting residence.
The interested parties commenced work on the development. In a letter sent to the defendants in April 2010, they asserted that the 2007 permission was a free-standing consent for nine chalets with no restriction on residence. The defendants did not respond to that letter or subsequent e-mails until July 2010. They did not inform the interested parties of their intention to apply for judicial review to quash the permission until September. Finally, in October, the claimant filed a claim on behalf of the defendants seeking: (i) consent to apply for judicial review of the permission on the ground that it had been granted in error; (ii) an extension of time for that purpose; and (iii) a declaration as to the true meaning of the 2007 permission.
The interested parties contended that permission to apply for judicial review should be refused on the ground of undue delay. They argued that the delay had caused them significant prejudice because uncertainty over the planning position had forced them to suspend the development causing them to lose sales and incur interest on loans taken out to finance the project.
Held: A declaration was granted in favour of the interested parties; permission to apply for judicial review was refused.
(1) The 2007 planning permission, properly construed, permitted the erection of nine chalets without residence restrictions. There was no dispute that the work carried out by the interested parties prior to the grant of permission had complied with planning law and that the work still to be completed would likewise be lawful. That lawfulness had to have a source. With regard to the layout of the development and the types of chalets to be erected, legitimacy could be derived only from the 2007 permission. It was not possible to treat the legality of eight chalets as being dependent on the 2003 permission and the consequential approval of reserved matters, so far as it dealt with the number of chalets, while treating the legality of the ninth chalet, the type of all the chalets and the layout as dependent on the 2007 permission . Although in some cases different parts of the works carried out under two distinct planning consents, any such attribution would involve artificiality in the circumstances of the instant case. It would also be destructive of the principle that any amendment to an existing planning consent could proceed only by way of a fresh consent, resulting in two separate planning permissions either one of which could be used.
(2) Where the grant of planning permission had been infected by a material error, the court should maintain the integrity of the planning system by quashing the permission: R (on the application of Gardner) v Harrogate Borough Council [2008] EWHC 2942 (Admin); [2009] JPL 872 considered. However, there was a good reason not to take that course in the instant case because the council’s undue delay in bringing the claim had caused substantial prejudice to the interested parties. The requirement to bring a judicial review claim promptly applied with particular force where the challenge related to a grant of planning permission: R (on the application of Finn-Kelcey) v Milton Keynes Borough Council [2008] EWCA Civ 1607; [2009] JPL 493 applied. On the basis that time ran from the date on which the defect in the permission had formally been drawn to the defendants’ attention, namely the interested parties’ letter of April 2010, the three-month period for bringing a claim set out in CPR 54.5(1) had expired in July 2010. Even assuming that the issuing of proceedings within that period would have satisfied the requirement of promptness, the fact remained that the claim form had still been issued more than three months late. That delay was inordinate and had been aggravated by the defendants’ failure to respond to communications from the interested parties. Even when the decision to begin litigation had been made, it had taken a further six weeks to issue the claim form, which was inexcusable. The prejudice that the delay had caused to the interested parties was not offset by other factors. There was no evidence that the development would cause special harm beyond that envisaged by general planning policy considerations leaning against new housing in rural areas. Any unexpected windfall received by the interested parties at the cost of that policy would be used in part to pay the extra interest charges they had incurred. Although the correction of a plain error in the interests of good administration would have been a powerful factor had the claim been launched promptly, it could not assist the defendants in the light of the pre-litigation history.
Mr John Hunter (instructed by the legal department of Craven District Council) appeared for the claimant and defendants; David Manley QC (instructed by Walton & Co, of Leeds) appeared for the interested parties.
Sally Dobson, barrister
