This blog picks up from the Part 1 blog on JR time limits issues arising from R (Croyde Area Residents Association) v North Devon District Council [2021] – in which planning permission for substantial commercial development was quashed over 6 years later. Aside from the time limit issues, the approach to Certificates of Lawfulness are worth bearing in mind.
Certificate issues
Permission had been granted unlawfully for an expanded site area in 2014. A Certificate of Proposed Lawfulness was granted on appeal confirming the scope of the permission (LDC). The expanded scale of development referred to in the LDC had not been implemented.
In defending the JR claim seeking the quashing of the 2014 permission (dealt with in our Part 1 blog), the site owner resisted the exercise of the judicial discretion to entertain the JR claim on various grounds. One of which was that it would impermissibly undermine the LDC and deprive the owner of its benefit given:
- the time limit for challenges to the SoS decision (s.284(1) TCPA 1990)
- the intended conclusiveness of such Certificates (s.192(4) TCPA 1990).
Limitations Worth Bearing In Mind
The Judge accepted that:
- The LDC only established proposed lawfulness on the date it was granted;
- S.192(4) is clear that the conclusiveness of proposed lawfulness certificates is subject to any material change before the proposed use is instituted;
- While the LDC Inspector had no choice but to reflect the extant permission in the LDC, quashing of the planning permission would be such a material change. They rejected the owner’s argument that material change should be a material change on the land itself.
The judgment therefore confirms that material change for s.192(4) includes judicial acts and determinations such as the quashing of an earlier planning permission.
Special Circumstances Required For BackDoor Challenges
The Judge was clear that Section 284(1) related to the LDC not the planning permission. The LDC is not intended to create absolute certainty of the use, given the material change provisions. Section 284(1) did not therefore deprive the Court of jurisdiction to hear the judicial review challenge to the underlying permission.
That said, it is clear that such challenges will still involve threading the eye of the needle:
- It would be a highly unusual – if not exceptional – situation where the Court quashes a planning permission where the effect is to remove the benefit of an LDC;
- “In the vast majority of cases the existence of an LDC will be an overwhelming reason not to quash a planning permission“;
- This case was held to be exceptional:
- the development referred to in the LDC remained unimplemented (and a subsequent permission had been granted for the limited development actually intended in 2014);
- the scale of the impacts on the Area of Outstanding Natural Beauty and related public confidence in the planning system were given significant weight.
The outcome underlines that great care is needed when relying on Certificates, particularly where they are prospective.
