Permission on Erroneous Basis

March 27th, 2018

In R (Thornton Hall Hotel Ltd) v Wirral MBC (2018) EWHC 560 (Admin) unconditional and permanent planning permission for the erection of three marquees on a green belt site was quashed where it had been granted on an erroneous basis, namely the omission of conditions including a five-year time limit which had clearly been envisaged by the local authority’s planning committee in approving permission. To allow the marquees to remain in place would subvert the public interest in the integrity of the planning process.

Kerr J said as to the general law:-

“29.    The grant of planning permission takes effect on written notification of the decision. …

  1. There is no power to withdraw a planning permission once granted, on the basis of an administrative error in the decision making process …
  2. Nor can an effective planning permission, once issued in error, be altered by issuing an amended notice of planning permission …
  3. On the other hand, a planning permission issued in error and without proper authority is invalid and may be declared so or quashed: …”

Kerr J granted an extension of time. He said:-

  1. … on the facts as they appear before me, I think justice requires that the extension of time be granted so that the interest of the public in the integrity of the planning process is not excluded from consideration by this court. The public interest lies in the court having power to rectify the error. That public interest is represented by the statutory planning powers of the LPA. On judicial review of the exercise of those powers where a mistake has led to illegality, its guardian is the Administrative Court.
  2. I therefore grant the extension of time sought. I also grant permission for the claim to proceed. I am easily satisfied that it is properly arguable. … there are arguable issues as to whether or not the error permission is a “nullity” and whether or not the court should grant relief and, if so, what form of relief.
  3. I therefore turn to the substance of the judicial review claim. The first point is that I accept the submission … that planning permission was granted by issue of the decision notice and that any legal flaw arising from the omission of the intended conditions, including the five year time limit, did not prevent the planning permission from having legal effect, unless and until quashed by this court.
  4. The cases … establish that a decision which is defective by reason of a legal flaw cannot normally be treated as a complete nullity, such that it is wholly void, ab initio, and can safely be ignored. The orthodox position is now settled: such a decision is capable of having legal effect, unless and until it is quashed.
  5. Next, I accept also that there are cases where a legal flaw is present in a decision, but the decision then effectively acquires legitimacy, despite the flaw, either because no challenge is brought to have the decision quashed; or because any challenge comes too late and the court is unwilling to extend time; or because the court is for some other reason unwilling to grant relief; for example, because the claimant lacks standing to bring the claim.
  6. Applying that learning to the facts of this case, it must follow that the presence of the three marquees did not, and subject to this judgment does not, offend against the law, either as respects their presence at Thornton Manor before 19 December 2016 when the five year time limit expired or would have expired; or as respects their presence after that date, down to the present. However, the question remains whether the court should now grant relief which would alter that position for the future.
  7. The cases … do not establish that the court is powerless to rectify the error by quashing the defective planning permission. I do not accept the interested party’s submission that because the LPA intended to grant planning permission of some kind and delegated to officer level the actual issue of the permission, the error is cured or is not significant. I do not think the authorities cited support that proposition.
  8. There is no principle in play here akin to what in private law would be called estoppel by representation. Nor did the officer who issued the decision notice have any ostensible authority, as an agent might have done in a private law context, to issue an unconditional planning permission. The correct analysis is that the permission, while not wholly void, was flawed by the erroneous absence of the conditions the committee had decided upon and, subject to a valid challenge by a qualified challenger, susceptible to quashing.
  9. In my judgment, the court should now exercise its power to rectify the error by quashing the permission. I have reached this conclusion for the following reasons, which are closely interlinked.
  10. The first and most obvious reason is that the error was made. The planning permission that was issued is not as it should be. The authority delegated to officer level to issue the permission, plainly was not intended to include authority to undo the committee’s decision that the permission should be conditional. That would fly in the face of the committee’s decision to accept the recommendations in the report to the committee.
  11. The second reason is that unconditional and permanent planning permission to erect the three marquees and keep them there would not have been granted and would not have been considered as being in the public interest. The permanent presence of the three marquees was inappropriate development in the Green Belt; their presence was only regarded as acceptable because of the difficult financial position, the threat to the condition of the gardens which were in decline, and by reason of the limited duration of the permission, which preserved the power of the LPA to review the position from time to time.
  12. The third reason is that if I do not grant the relief sought, the marquees need not be removed, ever. Unless the LPA decides otherwise, they should be removed. Their presence at Thornton Manor ought to have ceased in December 2016 unless a fresh permission had been granted, application for which was deliberately not made. If the marquees are now allowed to stay permanently, the proper operation of the planning process will have been subverted.
  13. Fourth, that would be contrary to the public interest. … the public interest in this case … is more important than the commercial interests of the interested party, at least on the facts of this case.
  14. Fifth, among my reasons for taking that view is that the interested party was aware of the error. …
  15. Sixth, it follows that the interested party ran its commercial operation at Thornton Manor from 22 December 2011 knowing that the presence of the marquees after 19 December 2016 would be, at the very least, a matter of possible controversy and possible legal challenge. It was not, in my judgment, realistic to rely on expiry of the three month limitation period without also bringing the issue into the open, which the interested party decided not to do.”

“66.    Seventh, it follows that I am not impressed by the argument that the interested party would be prejudiced by the grant of relief, because it accepted bookings in good faith, up to the year 2020, on the strength of the unconditional planning permission of which it had the benefit. It was only able to enjoy that benefit by keeping silent about the obvious error that had been made. Its decision to accept bookings at a time when the presence of the marquees would be legally precarious, was one made at its own risk and peril.”

“68.    Eighth, it is said by the interested party that it would be detrimental to good administration if the marquees have to be removed. Normally, detriment to good administration in public law cases relates to the undesirability of interfering with the provision of public services rather than commercial interests. I see no detriment to good administration in rectifying the error. I think it is detrimental to good administration that the marquees are still there. Good administration includes correct implementation of planning decisions.

  1. I do have great sympathy with any persons who have made bookings with the interested party for a wedding or other function, whose function may be placed in jeopardy as a result of this judgment. They may have reason to complain about the interested party’s conduct if they were not warned about possible legal difficulty, but that is not a matter for me. I do not think the existence of these bookings, about which I do not have detailed evidence, should override the public interest in the integrity of the planning process.
  2. Ninth, the interested party signed the section 106 agreement embodying the omitted conditions including the five year time limit. Yet, it proceeds in this litigation as if it were not bound by the terms of that agreement. That seems to me only to compound the unconscionability of its position. It undertook in private law the same obligations as it denies in public law.
  3. All in all, my difficulty with accepting the case for the interested party is that it entails the proposition that the marquees should be allowed to remain in situ forever, when in my judgment they should not be there unless permitted to remain under a fresh and lawfully granted planning permission, and in accordance with the terms of that planning permission.”

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