The Court of Appeal, by holding in R (on the application of Gleeson Developments Ltd) v Secretary of State for Communities and Local Government (see PP 2014/125) that a power to withdraw a validly granted planning permission, on the basis of an administrative error by someone other than the decision-maker, could not be said to be implicit in the Town and Country Planning Act 1990 (“the Act”) was sounding a warning also to each local planning authority (“LPA”) in England and Wales.
The appeal judges clearly viewed such a principle as being inconsistent with the provisions of section 97 of the Act. These expressly empower a LPA, if it appears expedient to it to do so, to revoke or modify any planning permission granted on an application made under Part III of the Act, provided that such power is exercised before the development permitted is completed. (The Secretary of State enjoys a similar power under section 100 of the Act.) But the making of a revocation or modification order triggers a liability on the LPA under section 107 of the Act to pay compensation, whether the order is made by the LPA or by the Secretary of State. Any order made by the LPA that is opposed requires confirmation by the Secretary of State.
In the context of payment of compensation, one Supreme Court justice has stated that section 97 creates a specific power to “buy back” a planning permission previously granted. In practice, there is probably more scope for administrative errors occurring in relation to the grant of planning permission by a LPA than in relation to the determination of a planning appeal. It is a daunting prospect for any LPA to be faced with the prospect of “buying back” out of public funds a planning permission mistakenly granted. (In fact, on occasion this has resulted in a LPA – in the person of one of its members – applying to the court to quash the planning permission by means of judicial review, rather than pay compensation.)
Footnote: In what was possibly the worst scenario ever for any LPA, in 1998 the Secretary of State made a modification order under section 100 of the Act in relation to an outline planning permission granted (partially in error) earlier by Alnwick District Council (“the Council”). The order deleted all retail use from the planning permission. This resulted in a compensation claim being made against the Council by Safeway Stores for £4.6m. At the time, the Council’s annual budget was reported to be £3.5m.
John Martin
