Time Becomes A Loop

Recent judgments are a reminder that the benefits of two mainstays of the planning system – Certificates of Lawfulness and Judicial Review time limits – are far from absolute.   In R (Croyde Area Residents Association) v North Devon District Council [2021] the High Court quashed a planning permission over 6 years after the time limit expired.

Wrong Turn

Permission was granted in 2014 for extended opening months for a holiday park, as applied for. The LPA included a condition requiring compliance with the submitted plans. The location plan mistakenly increased the site area by 22 hectares.  This significantly increased the area where caravans/lodges could be sited.

The owner did not spot this windfall for four years, during which it applied for/withdrew from a similar level of extension. A Lawful Development Certificate (LDC) for the extended development, based on the 2014 ‘mistake’ permission, was granted on appeal. The claimant group sought judicial review of the permission itself.

How Long Is Now?

All parties agreed that the permission had been granted unlawfully.  The key issues were whether:

1. the judicial discretion to allow the normal (6 week) period for challenging a permission should be used (and a remedy granted);
2. doing so would impermissibly undermine the LDC, given the provisions limiting challenges to the SoS decision (s.284(1) TCPA 1990) and the intended conclusiveness of such Certificates (depriving the owner of the benefit).

This blog deals with issue (1) – our next blog deals with (2).

In allowing the Claim – 6.5 years after the permission was granted – the Judge summarised the factors confirmed as relevant for challenges out of time by the Court of Appeal in R (Thornton Hall Hotel Ltd) v Wirral BC) including:

• whether the claimant has acted promptly having received “proper notice” of the application;
• the need for a fair balance between the interests of the developer (who should not be substantially prejudiced) and the public interest in good administration.

Core Principles – Fairness Balance

The owner claimed that both very special reasons and exceptional circumstances would be required to justify the length of delay in bringing the claim.  The judgment underlines that:

• The Courts will rarely extend time for a legal challenge “simply because an objector did not notice what was happening” as long ‘proper notice’ of an application has been given.  It would otherwise be unfairly prejudicial to the developer.
• Claimants must act promptly “unless very special reasons can be shown” (see the Gerber windfarm case).
• Developers are entitled to rely on the lawfulness of the LPA’s actions without having to constantly to check if “they cannot be said to have caused or contributed to that failure“.
• Delay will generally require a much stronger case that the permission was unlawful.
• The length of delay, the effect of the challenge decision and the consequences of it being reconsidered are all relevant to the concept of detriment to ‘good administration’.
• Thornton Hall Hotel confirms that the Courts will seek to strike a “fair balance” when deciding whether to actually quash the decision. 

Delicate Facts

The facts behind delay therefore matter:

• The total period of delay was 6.5 years, but for the first 4 years the owner itself had not realised that the 2014 permission gave the extended development rights. The claimant’s failure to challenge during the first 4 years was therefore “entirely reasonable and explicable“.
• The Claimant had “no reason to believe that there was any reasonable ground on which to seek the challenge” the 2014 permission.
• The owner asserted the broad effect of the permission later and the claimant argued that it had no basis for seeking to challenge the permission then (because it was arguing that it did not have the legal effect contended for by the owner in the LDC application). The LPA had refused the LDC application and so there was no need for them to challenge.
• The owner pointed to the fact that the claimant could (should) have asked for the LDC application to be adjourned pending determination of a challenge to the 2014 permission. The judge rejected that on the basis that there was simply no need for the claimant to bring a challenge at that point. The claimant should strictly speaking have filed a JR claim when it became aware of the LDC appeal and asked for it to be stayed pending the LDC outcome. It was excused from doing so. 
• The final period was from the appeal decision itself (granting the LDC on the wider basis of the 2014 planning permission) to the filing of the claim which was around 4 months. Covid delays had been a factor and the claimant only decided to claim once its efforts to persuade the LPA to modify or revoke the permission had failed.

The first two points are troubling because the scope – and so the unlawfulness – of the 2014 permission was patent when it was granted.  It was sufficiently clear to underpin the LDC decision (which the Judge held the Inspector had no choice about) and for all parties to the claim to agree there was unquestionable unlawfulness. Tolerating four years of delay because neither the owner nor third parties had spotted the unlawfulness may prove an unhelpful precedent unless the case is confined to its facts.   

The following wider factors ultimately justified quashing the 2014 permission:

• The costs incurred in fighting the LDC refusal were given significant weight but the commercial windfall achieved by the LPA’s mistake (worth c. £1m p.a.) was irrelevant.
• No financial reliance had been placed on the windfall and the permission had not been implemented on the expanded part of the site – there was no real detriment to removing it. Losses incurred in reliance on the permission will be given great weight whereas future financial losses from not having the windfall available would not.
• The case is a “unique and exceptional one”, where the overriding factor was the significant harm to the AONB in a highly prominent location – “it would be very hard to explain to a member of the public why permission which was granted in complete error and where the developer has now got a permission which gives him what he originally sought an extension of operating time should not be quashed“.

These are all exceptional aspects, but are unlikely to prove unique as claimants look to test the waters on other cases.

Proper Notice

Finally, it is worth bearing in mind that the applicant had failed to notify the owners affected by the extended site plan.  Its application certificate was therefore misleading. The judge noted that “whilst it is fairly common for permissions to be upheld even where this type of error is made“, the scale of the error and the fact that at least one of the landowners (The National Trust) would have been “adamantly opposed to the development could well be an operative error of law”. Given the strength of the other grounds the judge did not consider this further.  If things had been more finely balanced, it is quite possible that the years of delay may have been tolerated due to the absence of ‘proper notice’ alone.