Planning application — Deliberate failure to comply with procedural requirements — Whether consequent grant of planning permission should be quashed — Claim allowed
The interested party, D, applied to the defendant council for planning permission to construct a new bungalow on part of the garden at the rear of his property. The claimants occupied the properties to either side. The plans attached to the planning application indicated that the access route to the bungalow included a widened splay. Although the application certified that all the land in the proposed development belonged to D, part of the splay in fact belonged to the first and second claimants, the Ps.
The council subsequently became aware of the situation and that the certificate signed by D was consequently false. They informed D that his proposals were likely to be refused. They suggested that the application should be withdrawn and renewed, or, alternatively, that notice should be served on the Ps as owners of some of the land in the application, and that an appropriate certificate B should be filed, as required under article 6(5)(a) of the Town and Country Planning (General Development Procedure) Order 1995 (GDPO). D did not withdraw the application, but submitted an amended plan. A certificate B was later submitted, certifying that the Ps had been notified of the application. However, this was untrue. The council assumed that they had received a valid application, one that had to be dealt with within eight weeks of its submission.
The council granted planning permission for the amended proposals. The claimants challenged that decision by way of judicial review. Their main contention was that the procedural irregularities in connection with the application should lead the court to exercise its discretion to quash the planning permission.
Held: The claim was allowed.
Having regard to the language of section 65(5) of the Town and Country Planning Act 1990, and articles 6 and 20 of the GDPO, the requirements imposed upon an applicant for planning permission were mandatory. The council had erred in their approach to the application; the eight-week rule applied to a valid application only, and time did not commence until any certificate required by the GDPO had been received.
The separate issues concerning the invalidity of the application and the considerations relevant to the application to quash the consequent grant of planning permission should not be conflated. In the present case, however, D had shown a cavalier disregard for the mandatory requirements in respect of the statutory certificate and he had deliberately failed to comply with these. It was one thing to fail to give notice to an unidentified owner of part of the land, but quite another to certify that prior notice had been given when it was known that this was not the case. In those circumstances, to exercise the court’s discretion so as to preserve the benefit of the planning permission that had been granted to D would come close to undermining the mandatory scheme of the legislation: Main v Swansea City Council (1985) 49 P&CR 26 distinguished. The planning permission would therefore be quashed.
Daniel Kolinsky (instructed by Burges Salmon, of Bristol) appeared for the claimants; Simon Pickles (instructed by the solicitor to Salisbury District Council) appeared for the defendants.
Sally Dobson, barrister
