In R (on the Application of Thornton Hall Hotel Limited) & Anr v Thornton Holdings Limited, the Court of Appeal upheld the decision of the High Court to allow a claim for judicial review of a planning permission to be brought more than five years after the issue of the decision notice.
Background
Thornton Holdings Limited obtained planning permission for marquees in December 2011 as part of its wedding venue operation. One of the reasons given in support of the application was that it was “enabling development” required to fund the restoration of the registered historic gardens of the grade II* listed Thornton Manor.
The Council's planning committee resolved to grant planning permission subject to 10 conditions, one of which had the effect of making it a temporary (5 year) planning permission.
For reasons unknown, the formal decision notice did not incorporate any of the conditions that the planning committee had resolved to impose, including the one limiting its duration to five years. In 2017, after expiry of the 5 year period, a rival wedding venue nearby launched a judicial review of the permission. This was after being told by the Council that the condition had not been imposed and that, as a consequence, enforcement action could not be taken requiring removal of the marquees.
Under court rules applying at the time of the decision, such challenges must be brought "promptly and in any event within three months" (now six weeks). However, the High Court exercised its discretion to extend that time limit and quashed the permission. The Court of Appeal has now dismissed an appeal against this decision.
Reasons
In summary, the reasons given by the Court of Appeal were;
- The applicant was aware of the error and chose to rely on the erroneous planning permission at its own risk.
- The Council acted unlawfully in concealing its error. It initially attempted to correct matters by generating a fictitious decision notice and manipulating the planning register. It could have revoked the permission or issued a discontinuance order but had done neither.
- Unusually, this was not a case where it was contended that there was anything unlawful in the planning committee’s decision, merely that it was demonstrably unlawful for the Council to issue a permanent planning permission when it had resolved only to grant temporary one.
- The Council had actively supported the challenge to the planning permission.
- The applicants were not deemed to have suffered any material hardship or prejudice as a result of the delay. If anything, the delay worked in their favour, as it enabled them to take advantage of a permanent planning permission that they knew should have been temporary.
- The applicants "were well aware from the outset that the planning permission had been wrongly issued, and knew precisely what the Council's error had been".
The “exception that proves the rule”
Developers can take comfort from the fact that such circumstances will arise extremely rarely, and from the final few paragraphs of the judgment in which the Court states;
"There can be no doubt that the circumstances of this case, viewed as a whole, are extremely unusual. We would go further; they are unique...
…No precedent is being set here. We stress once again that the court will not lightly grant a lengthy extension of time for a challenge to a planning decision by a claim for judicial review, nor will it lightly grant relief after a long delay. It will insist on promptness in bringing such challenges in all but the most exceptional circumstances. Here the circumstances are most exceptional. They are wholly extraordinary. This is a case where it can truly be said that the exception proves the rule”.
However, notwithstanding the exceptional nature of this case, erroneous decision notices and misconceived attempts to correct them are certainly not unheard of.
Developers should take note of the perils of relying on a decision which they know has not been issued in accordance with a committee resolution. For local planning authorities, the decision should make it clear, if it wasn’t already, that simply issuing a replacement decision notice to correct a planning permission issued in error is not a quick fix; revocation or discontinuance orders must be considered.
