It has long been accepted that the grant of planning permission vests development rights in the land in question, and that a local planning authority (“LPA”) has no power simply to withdraw planning permission once granted. This principle is consistent with the provisions of section 97 of the Town and Country Planning Act 1990 (“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, and an opposed order made by a LPA requires confirmation by the Secretary of State.
The fact that the LPA may have granted the planning permission by mistake – and, bearing in mind that it is the issue of the decision notice that constitutes the actual grant, in practice this can happen – the position would appear to be no different. (On occasion, this has resulted in the LPA, in the person of one of its members, seeking to quash the planning permission by means of judicial review rather than pay compensation.)
But now, the court in R (on the application of Gleeson Developments Ltd) v Secretary of State for Communities and Local Government [2013] EWHC 3166 (Admin); [2013] PLSCS 245 has offered just a glimmer of hope to a LPA in the situation of having granted planning permission by mistake. In that case, an inspector’s decision letter on a planning appeal, allowing the appeal and granting planning permission, was issued in error. The Planning Inspectorate purported to withdraw it.
The court held that Parliament had intended an implied modest power of withdrawal in the Act to enable simple and obvious administrative errors to be corrected within a relatively short time scale. It would be contrary to good administration and fairness, in the public interest, to allow such an administrative error to have permanent and irrevocable effect. In the present case, it would be unfair for the developer to benefit from the error, and for other parties to the planning appeal – including the LPA and any objectors – to be prejudiced in such a way.
The question is whether such a power would equally be implied in favour of a LPA. There would seem to be no reason why it should not be.
John Martin
