Aggrieved person
L applied for planning permission for a large mixed-use development. The Secretary of State called in the application. Following a public local inquiry, the inspector recommended the grant of planning permission. That recommendation was accepted by the Secretary of State. Both M and R applied to the court under section 288 of the Town and Country Planning Act 1990 to quash the Secretary of States decision. This means of challenge is available to any person who is aggrieved by such a decision.
M was a commercial developer interested in acquiring a potential development site some three miles away from the application site. It had lodged no objection to Ls application, nor taken part in the inquiry. Furthermore, it had no proprietary interest in any land affected by Ls proposed development. R was a local resident who lived close to the application site. Her involvement had been limited to lodging a written objection to the application. M had entered into an agreement with R that in return for a payment of 1,000 and a full indemnity in respect of costs she would join in the challenge, in case M should be found to lack standing.
L applied to have the application summarily dismissed, contending that neither M nor R was a person aggrieved, the agreement between them amounted to an abuse of process, the application had been served outside the six week time limit and the grounds of challenge had no reasonable prospect of success.
Decision: Blackburne J dismissed the application by M and R, holding that M had no sufficient standing for the purposes of section 288. He did not rule on the standing of R because he also found that their grounds of challenge had no reasonable prospect of success, and that their application was served out of time. For a similar reason he did not rule on the abuse of process argument.
Comment: Clearly a person aggrieved can include the applicant for planning permission and the local planning authority, but it can be difficult to predict, on the basis of decided authorities, exactly how far this will extend to cover third parties in any given case. This decision confirms that the third party must not be a mere busybody, but someone with a real or genuine interest in obtaining the relief sought. It probably also establishes the need for the third party in question to have prosecuted his objections throughout and to have some proprietary interest in land affected by the decision under challenge.
Morbaine Limited v First Secretary of State [2004] EWHC 1708 (Admin)
Apparent bias
The council had granted listed building consent for a change of use of a Grade II listed building, currently on English Heritages register of buildings at risk, to use as offices and a consulting room, and for the erection of a mental health nursing home for 60 patients within the curtilage of that building. There was also a resolution to grant planning permission for the erection of the nursing home, subject to the completion of a section 106 agreement. The proposals had been considered by the members of the councils conservation advisory group (the CAG) which was made up of elected members of the authority and representatives of the local community.
The claimant contended that these decisions were vitiated by an appearance of bias arising out of the fact that four members of the councils planning committee were also members of the CAG and that three of them (who all voted in favour of granting the consents) participated in meetings of the CAG at which support was expressed for the proposals.
Decision: Richards J quashed the councils decisions. He said that in dealing with the apparent bias, it was necessary to look beyond pecuniary or personal interests and consider in addition whether, from the point of view of a fair-minded and informed observer, there was a real possibility that the planning committee, or their members, had been biased in approaching the decision, and that they had done so with a closed mind and without considering impartially all relevant planning issues.
He went on to hold that a fair-minded and informed observer would probably have concluded in the circumstances of the present case that there had been a real possibility of bias, as a result of the support expressed by the CAG for the proposals in the context of the planning committees decisions. Accordingly, the decisions were vitiated by the appearance of bias.
Comment: This case emphasises the care that any local planning authority needs to take to ensure that in determining planning applications, proper procedures are followed.
R (on the application of Georgiou) v Enfield London Borough Council [2004] EWHC 779 (Admin)
Delay - prejudice
The council granted planning permission to a developer in September 2000 to construct a builders trade centre on a site in north London. In so doing, they failed (a) to comply with the publicity requirements of Article 8(4) of the Town and Country Planning (General Development Procedure) Order 1995, and (b) to consider whether the application required an environmental statement under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999.
The claimant, who lived opposite the application site, sought judicial review of the councils decision, but his claim was lodged more than two and a half years after the grant of planning permission. Both the council and the developer conceded that the planning application process was affected by legal error, but contended that relief should be refused pursuant to section 31(6) of the Supreme Court Act 1981 on the ground of substantial hardship or prejudice to the developer and detriment to good administration.
Decision: Richards J refused to quash the grant of planning permission, while acknowledging that in the case of a timely challenge each failure on the part of the council would have been a sufficient reason for doing so. In approaching the application of section 31(6), this is what the judge concluded.
(1) The councils conduct and the nature of their legal errors. The procedural requirements were of obvious importance, and the claimant had been substantially prejudiced by the councils failure to comply with them.
(2) The claimants conduct and the period of delay. The claim was unduly delayed, but the claimant had no knowledge of the application or the grant of planning permission and had only become aware of construction works at a very late stage. His failure to act earlier was therefore understandable, and should not count against him.
(3) The conduct of the developer and any hardship it might incur. In terms of conduct, the developer had not been bound to monitor the steps taken by the council, though it had been in breach of one of the conditions attached to the planning permission. The central issue was the hardship that would be suffered by the developer, if relief were granted. The evidence suggested that the developer might be at risk in a sum of 2m in respect of construction works and materials.
(4) Any detriment to good administration. Quashing a planning permission long after it was granted would be detrimental to good administration.
On the overall balance of conflicting interests, the judge declined to exercise his discretion to quash the planning permission.
Comment: Part 54 of the CPR requires that in a claim for judicial review, the claim form must be filed promptly, and in any event not later than three months after the grounds to make the claim first arose. (In a case such as the present one, the House of Lords has held that time does not start to run until the actual grant of planning permission.) The court has a power to extend time, where it considers that there is a good reason for so doing, but the effect of section 31(6) of the Supreme Court Act 1981 is that it may refuse to grant either leave or relief if it considers that the granting of relief would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.
The case demonstrates the necessary approach where there has been undue delay on the part of the claimant. Richards J did go on, however, to grant the claimant a declaration that the council had failed to comply with the requirements of the 1995 Order and the 1999 regulations. This does not affect the validity of the planning permission, but might support some claim in damages by the claimant against the council.
R (on the application of Gavin) v Haringey LBC [2003] EWHC 2591 (Admin); [2003] 46 EG 131 (CS)
Judicial review - discretion
The challenge was brought on the grounds that the local authority had failed to assess whether the proposal contravened its planning guidelines. The judge found that this ground was made out. However, he withheld relief on the grounds that the local authority would simply grant planning permission again. The basis for this finding was that the Court had been given evidence which demonstrated that the local authority had reconsidered the application having all the relevant information before it and decided that it would grant planning permission
The Court considered that it had embarked on its reconsideration with an open mind and what was crucial was that the members of the committee decided to view the building for themselves and that re-appraisal was a compelling reason why relief should not be granted in the context of the instant case.
This is an interesting case, in that the reappraisal took place in the face of a judicial review challenge to its earlier decision. Although the judge noted the need to be cautious in such circumstances, he accepted that the reappraisal had been properly carried out. In refusing to quash he said:�As I have indicated in exceptional circumstances and in the exercise of my discretion I am entitled to withhold relief notwithstanding my view as to the validity of the decision made on the 9th May 2006. In my judgement the reappraisal undertaken by the Defendant does constitute a compelling reason why relief should not be granted in the context of this case. A quashing order would simply mean that the application for planning permission would have to be considered yet again by the Defendant. In the light of its consideration of this application between the 9th and 18th January 2007 it is virtually inconceivable that the Defendant would do other than grant planning permission. In those circumstances nothing whatsoever would be achieved by a quashing order� R (on the application of Jones v Swansea City & County Council [2007] EWHC 213 (Admin)
Time limits - human rights
The reports provided to the local authority's planning committee, in relation to proposed developments, had been deficient. The members of the committee, therefore reached their decision without taking into account the full terms of the relevant development plan policies. However, the Court held that there was no real possibility that the detailed consideration of those policies would have altered their decision. The decision of the planning committee was therefore upheld.
It was argued that the claim had not been brought promptly. It was held that although there had been some delay, the claim was within the three months limit. The Court held that the requirement for promptness should be considered with caution in view of the doubts expressed in R (on the application of Burkett) v Hammersmith and Fulham LBC[2002] UKHL 23 as to the compatibility of the requirement with the European Convention on Human Rights
R (On The Application of Frank Hampson) v Wigan Metropolitan Borough Council (Defendant) and Greenbank Partnerships Ltd (Interested Party) [2005] EWHC 1656 (Admin)
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