 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
England and Wales Court of Appeal (Civil Division) Decisions |
||
|
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Thornton Hall Hotel Ltd, R (On the Application Of) & Anor v Thornton Holdings Ltd [2019] EWCA Civ 737 (30 April 2019) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2019/737.html Cite as: [2019] PTSR 1794, [2019] EWCA Civ 737 |
||
[New search] [Printable PDF version] [Buy ICLR report: [2019] PTSR 1794] [Help]
ON APPEAL FROM THE ADMINISTRATIVE COURT
PLANNING COURT
MR JUSTICE KERR
Strand, London, WC2A 2LL |
||
B e f o r e :
Lord Justice Lindblom
and
Lord Justice Irwin
____________________
| (1) R. (on the application of Thornton Hall Hotel Ltd.) (2) Wirral Metropolitan Borough Council |
Respondents |
|
- and – |
||
| Thornton Holdings Ltd. |
Appellant |
____________________
Mr James Strachan Q.C. (instructed by Weightmans LLP) for the First Respondent
Mr Alan Evans (instructed by Wirral Metropolitan Borough Council) for the Second Respondent
Hearing date: 5 March 2019
____________________
Crown Copyright ©
Sir Terence Etherton M.R., Lord Justice Lindblom and Lord Justice Irwin:
Introduction
The issues in the appeal
The planning permission
"This permission shall be for a limited period of five years only expiring five years from the date of issue of the decision notice."
The reason for its imposition was:
"To enable the financial situation to be reviewed and minimise the impact on the green belt from the erection of the structures".
Other conditions required various matters to be approved before the marquees were brought into use. There was no condition requiring them to be removed at the end of the five-year period.
"Wirral Borough Council hereby grants Planning Permission for the development specified in the application and accompanying plans submitted by you subject to the following conditions ...".
However, no conditions were set out. Under the heading "Rights of Appeal" the decision notice stated:
"If you disagree with any of the conditions in this decision, other than those which have been imposed to comply with Regulations made under the Town and Country Planning Act 1990, you are entitled to appeal to the Secretary of State. ...".
In the "Notes to Applicant", under the heading "Compliance with Conditions", it stated:
"... The Council expects strict compliance with all conditions. Failure to do so may result in the service of a Breach of Condition Notice and prosecution by the Council."
The decision notice was signed by Mr Adderley, who was now the Acting Director of the council's Department of Regeneration, Housing and Planning.
"5. The resolution to grant planning permission (the Resolution) was made by the Council's Planning Committee in September 2010, conditional upon a Section 106 Agreement being entered into. Once the Resolution had been passed, and our subsequent representation to the Government Office for the North West to have the application called in had been unsuccessful, there was no reason for me to be further involved and I had no client instructions to be involved further. Whether I agreed with the Resolution or not, it was going through a process that I could not influence or even monitor. As noted above, the Section 106 Agreement between the Council and [Thornton Holdings] took well over a year to complete. Neither [Thornton Hall Hotel] nor I had any involvement in these ongoing negotiations, and planning permission could not be issued pursuant to the Resolution until they had been completed and the Section 106 Agreement had been entered into. Understandably, I had no client instructions to monitor the Council's website, or to check it over a year after the Resolution was made (or indeed, at all) to establish whether planning permission had been granted in accordance with the Resolution. Such a service was not offered or paid for by [Thornton Hall Hotel].
6. In any event there was no reason why I should have needed to monitor the process because the terms of the Resolution were absolutely clear. …".
Subsequent events
"11. [The council] has been unable to discover why the error occurred. As set out in the report prepared for [the council's] Planning Committee on 20th July 2017 … (paragraphs 1.2 and 6.1) it has been impossible to identify whether it was the result of a system error, a human error or a combination of the two. However, error there was. Moreover, the error permission was issued without authority. In those circumstances [the council] considers that the error permission is invalid and should be quashed. It does not therefore seek to resist [Thornton Hall Hotel's] application for judicial review but supports the same.
12. … [The council] has itself seriously considered whether it could achieve a judicial review of the error permission by the mechanism of a legal challenge to it brought in the name of the leader of [the council]. However, in the event, the leader was not willing to consent to such an arrangement, as explained in my letter dated 25 August 2017 to [Thornton Hall Hotel's] solicitors … ."
and (in paragraph 20):
"20. In order to further understand what had happened, [the council] investigated its information management system to consider what its electronic records showed. The results of that investigation are embodied in the July [2017] Committee Report. The investigation revealed ... that, while a decision notice containing conditions bearing the date 11th November 2011 was to be found on [the council's] website, that decision notice had not been produced until 17th May 2012. There was no record of any such decision notice having been produced on 11th November 2011 ... . The investigation further revealed that it was also on 17th May 2012 that the decision notice bearing the date 11th November 2011 was placed on the website in replacement of three differing versions of the decision notice (including the error permission) then published thereon. [The council] has not been able to establish which officer or employee did this or why it was done but the (erroneous) assumption which appears to have been made thereafter was that there was a valid and effective decision notice of 11th November 2011 which informed [the council's] consideration of an application to discharge conditions, its approach to the Extension Permission and its later threat of enforcement action."
The requirement for timeliness in challenging a grant of planning permission
"…
(6) Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant –
(a) leave for the making of the application; or
(b) any relief sought on the application,
if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.
(7) Subsection (6) is without prejudice to any enactment or rule of court which has the effect of limiting the time within which an application for judicial review may be made."
(1) When a grant of planning permission is challenged by a claim for judicial review, the importance of the claimant acting promptly is accentuated. The claimant must proceed with the "greatest possible celerity" – because a landowner is entitled to rely on a planning permission granted by a local planning authority exercising its statutory functions in the public interest (see Simon Brown J., as he then was, in R. v Exeter City Council, ex p. J.L. Thomas & Co. Ltd. [1991] 1 Q.B. 471, at p. 484G; and in R. v Swale Borough Council, ex p. Royal Society for the Protection of Birds [1991] 1 P.L.R. 6). In such cases the court will only rarely accede to an application to extend time for a very late challenge to be brought (see Keene L.J. in Finn-Kelcey v Milton Keynes Borough Council [2009] Env LR 17, at paragraphs 22 and 23; Sales L.J. in R. (on the application of Gerber) v Wiltshire Council [2016] EWCA Civ 84, at paragraphs 46 and 47; Lindblom L.J. in Connors v Secretary of State for Communities and Local Government [2017] EWCA 1850, at paragraph 87; Schiemann L.J. in R. (on the application of Corbett) v Restormel Borough Council [2001] JPL 1415, at paragraphs 14 to 27, and Sedley L.J., at paragraphs 29 to 33; and Hobhouse L.J. in R. v Bassetlaw District Council, ex p. Oxby [1998] PLCR 283, at pp.296 to 301).
(2) When faced with an application to extend time for the bringing of a claim, the court will seek to strike a fair balance between the interests of the developer and the public interest (see Sales L.J. in Gerber, at paragraph 46). Where third parties have had a fair opportunity to become aware of, and object to, a proposed development – as would have been so through the procedure for notification under the Town and Country Planning (General Development Management Procedure) Order 2010 ("the 2010 Order") – objectors aggrieved by the grant of planning permission may reasonably be expected to move swiftly to challenge its lawfulness before the court. Landowners may be expected to be reasonably alert to proposals for development in the locality that may affect them. When "proper notice" of an application for planning permission has been given, extending time for a legal challenge to be brought "simply because an objector did not notice what was happening" would not be appropriate. To extend time in such a case "so that a legal objection could be mounted by someone who happened to remain unaware of what was going on until many months later would unfairly prejudice the interests of a developer who wishes to rely upon a planning permission which appears to have been lawfully granted for the development of his land and who has prudently waited for a period before commencing work to implement the permission to ensure that no legal challenge is likely to be forthcoming …" (see Sales L.J. in Gerber, at paragraph 49). When planning permission has been granted, prompt legal action will be required if its lawfulness is to be challenged, "unless very special reasons can be shown ..." (ibid.).
(3) Developers are generally entitled to rely on a grant of planning permission as valid and lawful unless a court has decided otherwise (see Sales L.J. in Gerber, at paragraph 55). A developer is not generally required "to monitor the lawfulness of the steps taken by a local planning authority at each stage of its consideration of a planning application". Such an obligation is "not warranted by the legislative scheme, which places the relevant responsibilities on the local planning authority", and "it would give rise to practical difficulties if applicants were required at each stage to check on the authority's discharge of its responsibilities". Applicants for planning permission are "entitled to rely on the local planning authority to discharge the responsibilities placed upon it", and "should not be held accountable for the authority's failure to comply with relevant requirements, at least where … they cannot be said to have caused or contributed to that failure by their own conduct" (see Richards J. in R. (on the application of Gavin) v Haringey London Borough Council [2004] 2 P. & C.R. 13, at paragraph 69).
(4) What is required to satisfy the requirement of promptness "will vary from case to case", and "depends on all the relevant circumstances". If there is a "strong case for saying that the permission was ultra vires", the court "might in the circumstances be willing to grant permission to proceed", but "given the delay, it requires a much clearer-cut case than would otherwise have been necessary" (see Keene L.J. in Finn-Kelcey, at paragraphs 25 to 29).
(5) The court will not generally exercise its discretion to extend time on the basis of legal advice that the claimant might or should have received (see Sales L.J. in Gerber, at paragraph 53).
(6) Once the court has decided that an extension of time for issuing a claim is justified and has granted it, the question cannot be re-opened when the claim itself is heard. Section 31(6)(a) of the 1981 Act does not apply at that stage, because permission to apply for judicial review has already been granted (see Lord Slynn in R. v Criminal Injuries Compensation Board., ex p. A [1999] 2 AC 330, at p.341A-G); and Sedley L.J. in R. (on the application of Lichfield Securities Ltd.) v Lichfield District Council [2001] EWCA Civ 304, at paragraph 34; and CPR r.54.13).
(7) The court's discretion under section 31(6)(b) requires an assessment of all relevant considerations, including the extent of hardship or prejudice likely to be suffered by the landowner or developer if relief is granted, compared with the hardship or prejudice to the claimant if relief is refused, and the extent of detriment to good administration if relief is granted, compared with the detriment to good administration resulting from letting a public wrong go unremedied if relief is refused (see, generally, Lord Goff of Chieveley in R. v Dairy Produce Quota Tribunal, ex p. Caswell [1990] 2 AC 738; and Sales L.J. in Gerber, at paragraphs 59 and 60, and 64 to 69). The concept of detriment to good administration is not tightly defined, but will generally embrace the length of the delay in bringing the challenge, the effect of the impugned decision before the claim was issued, and the likely consequences of its being re-opened (see Sales L.J. in Gerber, at paragraph 62). Each case will turn on its own particular facts and an evaluation of all the relevant circumstances (see Schiemann L.J. in Corbett, at paragraphs 24 and 25; and Hobhouse L.J. in ex p. Oxby, at pp.298, 299, 302 and 303).
(8) It being a matter of judicial discretion, this court will not interfere with the first instance judge's decision unless it is flawed by a misdirection in law or by a failure to have regard to relevant considerations or the taking into account of considerations that are irrelevant, or the judge's conclusion is clearly wrong and beyond the scope of legitimate judgment (see Sales L.J. in Gerber, at paragraphs 61 and 62). It may often be difficult to separate the exercise of discretion on remedy under section 31(6) from the considerations bearing on the discretion to extend time under, for example, CPR r.3.1(2)(a) (see Sales L.J. in Gerber, at paragraph 62). Care must be taken to distinguish in the authorities between cases where the court has exercised its discretion under section 31(6) and those where it has exercised its general discretion on remedy in a claim for judicial review (see, for example, Carnwath L.J. in Tata Steel UK Ltd. v Newport City Council [2010] EWCA Civ 1626, at paragraphs 7, 8, 15 and 16; and Sales L.J. in Gerber, at paragraph 64).
The judgment of Kerr J.
Did the judge err in extending time for the claim to be brought?
Was the judge wrong not to exercise his discretion to refuse relief under section 31(6) of the 1981 Act?
Conclusion