The Town and Country Planning (Consultation) (England) Direction 2009 (“the 2009 Direction”) applies to specified categories of development in England. It obliges a local planning authority (“LPA”), having received an application for planning permission for a development to which the Direction relates, to consult the secretary of state if it does not propose to refuse planning permission. The secretary of state, in such a case, then has 21 days in which to issue a direction under section 77 of the Town and Country Planning Act 1990. But what is the practical consequence where a LPA breaches the 2009 Directive, and goes on to grant planning permission?
In R (on the application of Lady Hart of Chilton) v Babergh District Council [2014] EWHC 34261 (Admin) the claimant applied to quash planning permission granted by the LPA for the construction of two large warehouses with offices, service yards and car parking on a site close to various important heritage assets. She failed on all of her substantive grounds, but was successful on her single procedural ground, namely that the LPA had not complied with the 2009 Direction. The secretary of state should have been given the opportunity to call in the planning application for his own determination.
The court agreed that the planning application should have been referred to the secretary of state, being a development outside a town centre to which the criteria set out in the 2009 Direction applied. The claimant contended that the proper course would be to quash the planning permission, and remit the matter back to the LPA so that the planning application could then be referred to the secretary of state under the 2009 Direction. It would either be called in, or it would not be. In the latter case, it would be for the LPA once more to determine it.
However, the court declined to grant the claimant relief in this form. To quash the planning permission at that stage would cause disproportionate detrimental harm – both to the LPA and to the interested parties – should the secretary of state decide not to call in the planning application.
The better course was to adjourn the question of relief for two months, to allow the matter to be referred to the secretary of state with, in effect, a request from the court for him to express a view. While tacitly acknowledging that this course fell outside the scope of the 2009 Direction, planning permission already having been granted, the judge indicated that the court would probably quash the planning permission to clear the way for the Secretary of State to call in the planning application, were he ultimately so minded.
John Martin is a planning law consultant
