Town and country planning – Planning application – Procedural irregularities – Applicant obtaining planning permission for flat in airspace above claimant’s flat – Application form containing errors – Applicant failing to serve notice on landowner prior to application – Defendant local authority failing to notify claimant of application as adjoining owner or occupier – Claimant applying for judicial review – Whether planning permission should be quashed – Whether proper grounds for exercising court’s discretion to refuse relief – Application granted
The second interested party was the freehold owner of a six-storey block of apartments at 23-25 Mortimer Street in the City of Westminster. In 1998 the claimant acquired a 999-year lease of the penthouse flat, in which he lived with his wife. The first interested party acted as a consultant to the second interested party. The defendants were the local planning authority.
In 2016, the claimant obtained planning permission to extend his flat upwards. However, he wrongly failed to identify in his planning application form that he was not the owner of the airspace which was owned by the second interested party. Consequently, the works were halted. In 2017, the second interested party instructed a firm of architects to submit an application for an independent flat above the claimant’s flat. The first interested party was named as the applicant and both his address and site address were given as the penthouse flat. A “Certificate A” was submitted indicating that no lease longer than seven years would be affected. Notice of the application was not served on the claimant, although a site notice was placed in the street outside the block. Planning permission was later granted but the claimant only became aware of it when a structural engineer visited his flat.
The claimant applied for judicial review of the defendants’ decision to grant planning permission for the new flat. He contended that the permission should be quashed because: (i) the second interested party had failed to notify him as an “owner” of the land to which the application related; and (ii) the defendants had failed to notify him of the application as an adjoining owner or occupier of land to which the application related. The defendants consented to the quashing of the planning permission on the first ground but not on the second.
Held: The application was granted.
(1) The information in the application form was plainly erroneous. The second interested party was the true applicant, as the freeholder and owner of the airspace above the penthouse, which was wrongly stated to be the applicant’s address. Moreover, the site address should have been the airspace above the penthouse, not the penthouse itself. Certificate A was also incorrect because the claimant, as owner of even a small part of the land which was to be developed, ought to have been given the requisite notice of the application.
The court retained a discretion whether to quash the planning permission but there were no proper grounds for exercising the court’s discretion to refuse relief. It was highly likely that if the claimant had been notified of the application and had objected, the permission would not have been granted as it was. It was likely that, if his hypothetical objection had referred to the encroachment into the penthouse, the defendants would have drawn the matter to the attention of the architect who would have amended the application plans in the hope of eventually receiving a planning permission which could be implemented without the claimant’s consent. Even if the architect did not appreciate that the plans he was submitting included encroachment onto the penthouse, it was ultimately impossible to see how he could honestly have believed that the applicant’s address was the penthouse, or that the proposed development was solely of the penthouse, or that the applicant was the sole owner of the penthouse. Accordingly, the architect had recklessly issued a certificate which purported to comply with the statutory requirements and which contained a statement which was false and misleading and disclosed a cavalier disregard for the mandatory requirements in connection with a statutory certificate. Everything pointed towards quashing the permission, so as to enable any new application to properly reflect the scheme of the legislation by containing an accurate description of the owner and the site, and an accurate certificate of ownership to then be determined on its merits: R (on the application of Pridmore) v Salisbury District Council [2001] EWHC 2511 (Admin); [2005] 1 PLR 39 and R (on the application of Holborn Studios Ltd) v Hackney London Borough Council [2017] EWHC 2823 (Admin); [2017] PLSCS 207 applied.
(2) There was no legitimate expectation that the claimant would be notified of the application in writing by the defendants. The terms of the defendants’ Statement of Community Involvement were demonstrably discretionary using the phrase “Consultation may include …. advising in writing occupiers of properties immediately adjacent to the application site and directly affected by the proposal”. There was no express promise, and no evidence of any unequivocal practice, upon which the claimant could rely. Nor was there any evidence that he expected to be consulted by the defendants in the case of any planning application as an adjoining owner. Therefore, the claim based on legitimate expectation was hopeless Furthermore, as a site notice had been posted, there was no conspicuous unfairness and no allegation that it was unreasonable of the defendants not to consult the claimant by individual letter rather than by site notice.
Jack Parker (instructed by Russell-Cooke Solicitors) appeared for the claimant; Charles Streeten (instructed by Westminster City Council Legal Services) appeared for the defendants; Ali Reza Sinai (instructed by Direct Public Access) appeared for the interested parties.
Click here to read transcript: R (on the application of Bishop) v Westminster Council
