Sarah Phillips
Posted on 18 Dec 2018

Court quashes flawed planning consent 6 years after issue

Judicial review ("JR") proceedings to challenge a local planning authority's decision are required to be brought without delay and within 6 weeks of the decision. A recent planning decision of the High Court has allowed JR proceedings to be brought 6 years after a planning consent was granted, due to the special circumstances of the case. We consider the impact this decision has had on the planning status of a property, irrespective of the age  of the planning consent, how long the consent remains vulnerable to challenge and whether this could open the flood gates to out of time JR applications.

R (Thornton Hall Hotel Ltd) v. Wirral MBC [2018]  

This case involved two competing wedding and function venues: Thornton Manor and Thornton Hall Hotel. On 7th September 2011 Wirral Metropolitan Borough Council (WMBC) planning committee resolved to grant planning consent for 3 marquees to be erected in the Grade II* Hotel's grounds, which were also Grade II* listed and located in the greenbelt. The Committee resolved that very special circumstances existed to allow the erection of the marquees for a limited period of 5 years, to secure "the "generation of an income stream to enable restoration of the gardens, which were in decline and at risk, and constituted very special circumstances necessary to overcome the presumption against inappropriate development". 

The Committee report recommended the application be approved subject to a S106 planning agreement and included 10 recommended conditions, including a 5 year time limit. On 11th November 2011 the S106 agreement was entered into by the Hotel and the draft consent notice with the relevant conditions was annexed to it.

On 20th December 2011 WMBC issued an unconditional consent, omitting to attach the conditions, restricting the time period and the 9 other conditions the Committee decided to impose. It appears that WMBC were unaware of this omission until the five year time period of the consent had expired and the marquees were not removed. Thornton Manor brought JR proceedings on 23rd August 2017, which were not opposed by WMBC.

Despite the fact that it was 6 years out of time, the judges allowed the JR application and ruled on nine grounds in favour of the applicant, including that the error had been made in issuing the flawed consent; that the interested party (the Hotel) was aware of the error, and that the interested party had entered into a S106 planning agreement embodying the omitted conditions, including the 5 year time period.

Relevance

So why is this case interesting and what could it mean in practice? Interestingly, the court did not address whetherit was in the public interest to quash this decision. A JR period is important; it draws a line in the sand on which companies, lenders, institutions and people can lend, transfer and purchase properties, investments and companies. Arguably, despite the extreme facts of the case, this decision may open the flood gates to more out of time JR applications. It is also an example of the consequence of a flawed planning consent. So purchasers of property, who want to be certain about the planning status of a prospective property, or indeed an acquired property, irrespective of the age of the planning consent and expired JR period, shall potentially need to review the committee report behind the planning consent to satisfy themselves that the consent reflects the intentions of the planning committee.

This case seems to follow the recent cases in planning enforcement regarding concealment and deception such as the infamous "castle in a hay stack case", where a Mr Fidler deliberately concealed a large mock Tudor dwelling within a straw stack from the local planning authority, hoping to secure the house by relying on immunity from enforcement. However the courts approach to these recent clandestine enforcement cases seeks to ensure that no one benefits from deliberate concealment, or keeping quiet about a situation until an enforcement time period or JR period expires.

Planning update: Changes to prior approval applications

Changes to the GPDO (General Permitted Procedure Order) Part 3 (Class Q) (residential conversion of agricultural buildings) made by the latest amendment order, which came into effect from 06.04.18.

There are now 2 alternative prior approval applications for agricultural buildings to be converted into dwellings without the need for full planning permission (subject to specified procedures being completed and subject to certain limiting provisions).

Class Q(a) is simply for change of use from agricultural use to residential dwelling use. It refers to those situations where no building operations, which would affect the external appearance of the building, would be required to carry out the conversion.

Class Q(b) is for both the change of use and the associated building operations. This refers to both the change of use and building works reasonably necessary to convert the building into a dwelling.

Prior approval applications under Class Q should no longer be made under both Class Q(a) and Class Q(b), as Class Q(b) embraces both change of use and building operations, and will apply for the majority of cases.

For more information on this topic, please contact Sarah Phillips in our Planning team.