Judicial review – Extension of time – Planning permission – Defendant local planning authority granting planning permission for lodges and caravans at holiday park – Claimant applying for judicial review long out of time – Whether claim statute-barred – Whether court should exercise discretion to extend time – Application granted
The claimant was an unincorporated association established with the purpose of protecting and preserving the local area, including Croyde and the surrounding countryside, as one of outstanding national beauty. It applied for judicial review to quash the grant of planning permission by the defendant local authority to the interested party on 27 January 2014 for the use of lodges, static caravans and touring caravans at Ruda Holiday Park, Croyde, Braunton, Devon, which lay close to Croyde Bay Beach. The decision under challenge was very long outside the normal six-week period for judicial review of planning decisions set out in CPR 54.5.
The basis of the challenge was that the decision referred to a red line map that incorrectly included a service field as part of the park. The result was that the defendant had acted unlawfully in granting permission, including inter alia failing to take into account a number of material considerations and failing to carry out proper environmental screening. The defendant and the interested party which owned the site agreed that the planning permission had been unlawfully granted. The defendant further accepted that the permission should be quashed.
However, the interested party resisted the claim on the basis that it was statute-barred by reason of section 284 of the Town and Country Planning Act 1990, due to a recent lawful development certificate (LDC) which the interested party had sought and obtained in respect of the service field under section 192 of the 1990 Act. The interested party also argued that in all the circumstances no extension of time should be granted, and/or that relief should be refused.
Held: The application was granted.
(1) There was no doubt the claim was brought far outside the six-week time period for judicial review of decisions under the Planning Acts set out in CPR 54.5(5). When faced with an application to extend time for the bringing of a claim, the court would seek to strike a fair balance between the interests of the developer and the public interest. When planning permission had been granted, prompt legal action would be required if its lawfulness was to be challenged, unless very special reasons could be shown. Developers were generally entitled to rely on a grant of planning permission as valid and lawful unless a court had decided otherwise. What was required to satisfy the requirement of promptness would vary from case to case and depended on all the relevant circumstances. It was necessarily the case that a decision whether to extend time would be very fact specific, although it was appropriate to start from the position that it was of great importance that claimants acted promptly, particularly in cases that concerned challenges to planning permissions: R (on the application of Gerber) v Wiltshire Council [2016] EWCA Civ 84; [2016] PLSCS 59 and R (on the application of Thornton Hall Hotel Ltd) v Thornton Holdings Ltd [2019] EWCA Civ 737; [2019] PLSCS 80 applied.
This was a unique and exceptional case because the factors on both sides of the balance were extreme. The starting point was that the extension sought was more than six years, an exceptionally long time for such a challenge and for any judicial review. However, the reason the period was so unusually long was that the impugned part of the permission, the extension of the site, had still not been implemented. That was highly unusual; normally a permission not implemented for that period of time would have lapsed. The reason it had not was that nobody realised the effect of the permission for the first four years. But that did not detract from the overall length of delay, or the need to justify each part.
(2) There was great importance in challenges to planning permission being made with the greatest possible celerity in the public interest and in the interests of the holders of the permission. The interested party was entitled to rely on the grant of permission. The prejudice from any reliance on the grant here was real but relatively limited, ie the cost of the LDC application and the incidental costs. The real prejudice was the loss of the permission itself. However, that gain was itself unlawful as was conceded and should never have been granted. The court would have given great weight to any losses that had been incurred, but future financial gain should be given relatively little weight. The same could be said for future jobs and local economic benefit.
Although there was some prejudice to good administration from the late challenge, the overriding factor was the harm that would flow from upholding the planning permission. The site was in an area of outstanding natural beauty (AONB) in a highly prominent location. The visual material showed the impact if only the service field was developed, but the even greater harm if the whole of the red line application site was developed; caravans could be stationed across the entire area. Even though there was no evidence of the likelihood of that happening as the interested party had only indicated an interest in placing caravans on the service field and it may well be in relation to National Trust land that covenants would prevent its development, the wider potential harm was relevant.
However, even if only the development of the service field was taken into consideration, that was a significant intrusion into the AONB, contrary to a host of local and national policies. The interests of the credibility of the planning system weighed heavily in favour of quashing the permission. It would be hard to explain to a member of the public why a permission which was granted in complete error and where the developer had now got a permission which gave him what he originally sought, ie the extension of operating times, should not be quashed. Taking all the relevant factors into account, and applying the principles in Thornton Hall and Gerber, this was an exceptional and unique case in which it was appropriate to extend time and quash the 2014 permission.
Richard Turney and Alex Shattock (instructed by Richard Buxton Solicitors) appeared for the claimant; Peter Wadsley (instructed by North Devon District Council) appeared for the defendant; James Maurici QC and Heather Sargent (instructed by Herbert Smith Freehills LLP) appeared for the interested party.
Eileen O’Grady, barrister
