What is this decision about?
In December 2011, planning permission was granted to Thornton Holdings for the erection of three marques within the Thornton Manor estate in the Wirral. The permission was intended to be granted for a period of five years, but due to an error, this did not happen.
In August 2017 (some five and a half years after the permission was granted) an application for judicial review to quash it was made.
The issue was, could the court exercise its discretion to allow the application to be brought out of time? The High Court said yes and the Court of Appeal has now agreed.
Key facts
The circumstances of this case are very unusual and account for the equally unusual decision arrived at by both courts.
In short:
- Thornton Manor is a grade II* listed building, sitting within grounds including a grade II* listed historic garden and is in the green belt.
- The application for the erection of the marquees (to be used for weddings and other functions) was only permitted on the basis that it would generate funds to restore the historic garden and maintain it for a period of 25 years. For this reason, it was proposed that it should be a time limited permission.
- The planning committee resolved that the permission should be granted subject to 10 conditions, including one which would limit the permission to a period of five years.
- Draft decision notices were posted on the Council's electronic planning register, which included the 10 conditions, but the final decision notice omitted them all (the "error permission").
- At some point, an officer at the Council noticed the error and purported to cover it up by replacing the draft and final notices on the planning register with a further backdated decision notice which included all 10 conditions (the "November 2011 permission").
- Thornton Holdings was aware of the erroneously issued decision but said nothing. Instead, it set about discharging the conditions which appeared in the November 2011 permission.
- When it was asked to remove the marquees at the end of the five-year period, it refused and then sought to rely on the error permission.
- At this point, the operators of Thornton Hall Hotel (a rival wedding venue) became aware of the issue and sought to bring a judicial review.
Decision of the Court of Appeal
The court was very keen to stress that this case does not set a precedent and that each case would fall to be determined on its own facts. However, in the current circumstances, it took the view that "very special reasons" existed to excuse the delay and therefore it was right not only to grant an extension of the time period that applies to bring judicial review claims (now six weeks), but also to grant the relief sought – the quashing of the error permission.
Key to its decision were:
- The error permission had been issued without lawful authority.
- The Council's attempts to conceal the error were equally unlawful and compounded the problem. Had Thornton Hall Hotel reviewed the planning register at any point in the five-year period, it would have found it initially confusing and later misleading.
- The real effect of the Council's error did not transpire until the five-year period had elapsed.
- This was not a case where Thornton Holdings could have said it was relying on a permission which appeared to have been lawfully granted. Instead it was well aware from the outset that the error permission had been wrongly issued and knew precisely what the Council's mistake had been. It acted as if it were in compliance with the conditions in the November 2011 permission and only sought to rely on the error permission after the five-year period had passed.
- No material hardship or prejudice was suffered as a result of the delay. Bookings taken which went beyond the five-year period were done so at Thornton Holdings' own risk and in full knowledge that a defective decision notice had been issued without lawful authority.
Lessons to be learnt
Whilst the facts of this case are highly unusual and are unlikely to occur on a regular basis (or at all), one key takeaway is that if an applicant is aware of an error in a planning permission and chooses to ignore it, it does so as its own risk.
A court might not be willing to exercise its discretion to refuse relief in those circumstances and an applicant will have to deal with the consequence that follow.
Author: Sarah Batterton, Senior Expertise Lawyer.
