Judicial review – Extension of time – Planning permission – Local planning authority mistakenly granting unconditional planning permission for erection of marquees – First respondent applying for judicial review long out of time – Court exercising discretion to extend time – Appellant appealing – Whether court erring in granting extension of time to bring claim for judicial review against planning permission granted over five and a half years before claim issued – Appeal dismissed
The appellant owned and operated the Thornton Manor Estate, at Thornton Hough in the Wirral. The first respondent owned and operated the nearby Thornton Hall Hotel. The appellant and the first respondent were competitors for the business of hosting weddings and other functions. Thornton Manor was a Grade II listed building in the green belt with historic gardens which were also Grade II listed. In December 2011, the second respondent local planning authority granted unconditional planning permission to the appellant for the erection of three marquees within the grounds of Thornton Manor, without limit of time. The respondents said that that was a mistake and the planning permission should have been subject to a condition decided on by the second respondent but omitted in error from the document granting planning permission.
Having discovered the error only in July 2017, and believing the absence of conditions to have been a mistake and unlawful (because the planning permission should have been subject to conditions, including one limiting the permission to a period of five years), the first respondent issued a claim for judicial review. The judge accepted that the necessary extension of time for bringing the claim should be granted, that the planning permission was unlawful and that it ought to be quashed: [2018] EWHC 560 (Admin); [2018] PLSCS 58.
The appellant appealed. The issues to be determined were: (i) in view of the delay of more than five and a half years, whether the judge erred in extending time for the claim to be brought, under CPR rule 3.1(2)(a); and (ii) having regard to the substance of the claim, whether the judge was wrong not to exercise his discretion to refuse relief under section 31(6) of the Senior Courts Act 1981.
Held: The appeal was dismissed
(1) When a grant of planning permission was challenged by a claim for judicial review, the importance of the claimant acting promptly was accentuated because a landowner was entitled to rely on a planning permission granted by a local planning authority exercising its statutory functions in the public interest. When faced with an application to extend time, the court would seek to strike a fair balance between the interests of the developer and the public interest. When planning permission had been granted, prompt legal action would be required if its lawfulness was to be challenged, unless very special reasons could be shown: R (on the application of Gerber) v Wiltshire Council [2016] EWCA Civ 84; [2016] PLSCS 59 followed.
(2) It was undeniable that the extension of time sought in this case was extreme. It would only be in the most unusual circumstances that such an extension would ever be granted. However, the court’s power to extend time was not automatically extinguished after any given period had elapsed. The present case concerned a judicial discretion, not a fixed statutory limitation. In every case where delay had occurred, the court had to look closely at all the relevant facts in the round which would vary widely from case to case. Generally, very late challenges would not be entertained. However, in a particular case there might be special reasons to justify the extension sought. In the circumstances, the appellant had not suffered any material hardship or prejudice as a result of the delay in the claim being issued, which enabled it to take advantage of an unrestricted grant of planning permission that they knew the council had never resolved to grant. It was significant that the appellant had been aware of the error from the outset but had not queried it; and that the first respondent had issued the claim with reasonable speed on becoming aware of the mistake. On the particular and highly unusual facts, this was clearly a case in which the interests of good administration, and the credibility of the planning system, weighed compellingly in favour of the court having the opportunity to hear the claim and, if the claim succeeded, to deal with the second respondent’s error. Overall, this was a case where very special reasons existed to excuse the delay. The judge had been right to grant the necessary extension of time for the claim to proceed. In doing so, he adopted the correct approach and it was consistent with the relevant principles.
(3) As for the judge’s exercise of his discretion under section 31(6)(b) of the 1981 Act, this was a case where the considerations relevant to the grant of relief were largely the same as those for the extension of time. The judge had not overstepped the line dividing the supervisory role of the court from the functions of the local planning authority under the statutory scheme. In the extremely unusual circumstances of this case, the judge was right not to withhold a remedy despite the very considerable delay in proceedings being begun. The decision notice mispresented the council’s decision. This was not the normal case where a landowner or developer was entitled to rely upon a permanent planning permission not promptly challenged before the court. Balancing all the relevant factors: the obvious unlawfulness of the decision notice; the length of time that elapsed before the claim was made, the fact that the planning committee had lawfully resolved to grant temporary planning permission to allow the financial situation to be reviewed after five years; and the fact that the appellant had the advantage of avoiding that review and receiving an unrestricted permission that was never intended, it was appropriate to grant an order to quash. Despite the lengthy delay, the judge’s decision not to withhold relief was amply justified: Norfolk County Council v Secretary of State for the Environment [1973] 1 WLR 1400 and Cooperative Retail Services Ltd v Taff-Ely Borough Council (1980) 39 P&CR 223 applied.
Christopher Lockhart-Mummery QC (instructed by Gateley LLP) appeared for the appellant; James Strachan QC (instructed by Weightmans LLP) appeared for the first respondent; Alan Evans (instructed by Wirral Metropolitan Borough Council) appeared for the second respondent.
Eileen O’Grady, barrister
