Judicial review: Legal duties for giving publicity to permitted development proposals

In Coventry Gliding Club Ltd -v- Harborough District Council [2019] EWHC 3059 (Admin), the claimant gliding club applied for judicial review of the council’s decision to grant prior approval (under Class Q of Schedule 2, Part 3 of the 2015 GPDO) for a barn conversion which had sought to use an existing agricultural access across the club’s main runway.

This decision was itself surprising because in 2002 and 2003 the council had twice refused planning applications for the residential conversion of the same barn, on account of the risk posed by the unsafe access, and the potential for a statutory noise nuisance to arise.

After the hearing in October 2019 the judge ruled that the club’s claim should succeed, even though the legal action was begun almost a fortnight after the expiry of the usual 6-week deadline. There will now be a separate court hearing to decide what legal remedy to award the claimant in view of the important human rights issues which have been raised: see article “Judicial Review remedies: permitted development & human rights”.

Material considerations: para. Q.2(1)(e)

The judge ruled that the council’s consideration of the prior approval application had been unlawful on Wednesbury grounds because (on a fair reading of the officer report) it failed to take account, as material considerations, safety of access to the barn and the likelihood that noise from the gliding club’s activities would disturb future occupiers of the dwelling. These were relevant considerations in view of para. Q.2(1)(e) which had required the council to consider whether “the location or siting of the building makes it otherwise impractical or undesirable for the building to change from agricultural use to a use falling within Class C3 (dwellinghouses) of the Schedule to the Use Classes Order.”

The council had also wrongly taken account of an immaterial consideration which was the potential for the land to be used for other events (weddings, festivals, etc.) due to the existence of other permitted development rights under Sch.2, Part 4, Class B. The judge decided that, following Sullivan LJ’s judgment in the Samuel Smith Old Brewery case, any ‘theoretical possibility’ that the land could be put to these other uses was not a realistic fall-back position to which any sensible weight could be given in the absence of specific evidence before the officer of the applicant’s past use and future intentions in this regard.

Legal duty to give notice of the proposed development: para. W(8)

The club’s other main ground of challenge succeeded and was also instrumental to the judge’s decision to allow the ‘late’ legal challenge. This surrounded the question of whether the local authority had correctly discharged its statutory duty for giving publicity to the prior approval application.

Paragraph W(8) permits local authorities to choose between one of two forms of giving notice: one method is “by site display in at least one place on or near the land to which the application relates … ” (such display containing the prescribed information), and the other method is by serving a notice in that form on the adjoining owner or occupier.

The council had chosen to erect a site display, rather than serve individual notices. Its chosen location was on the roadside, opposite the gliding club entrance; however, this was also 900m away from the development site entrance itself.

The judge found that the question of compliance was one of objective fact. In the particular circumstances of the case, 900m was found to be excessive, and not sufficiently near to the application land even in the context of a rural location. There was no reason why the development site entrance could not have been used.

“Delay”

The judge was satisfied that he should extend time for filing the claim form in accordance with the ‘Denton principles’, distinguishing earlier decisions of the court in Gerber and Thornton Hall. The initial delay could be explained as a direct result of the council’s failure to erect a proper site notice in view of the gliding club’s evidence that it had not been aware of the submitted proposal before it was decided. The judge was also satisfied that the club’s solicitor had pursued matters ‘speedily and efficiently’ thereafter. The delay was neither unexplained, nor too long, and did not give rise to any prejudice having regard to the detailed evidence put before the court in relation to these matters.

Legal remedy: human rights

Normally in planning judicial review cases the court will quash the unlawful decision so that the application can be re-determined in a lawful manner. In the instant case, however, this matter is complicated by virtue of the default position under para. W(11)(c) which provides that a developer may proceed with permitted development if the council does not notify its decision within the relevant time frame.

This is a matter of general importance to all judicial review claims where an applicant is seeking legal redress in prior approval cases.

Ben Garbett advised Coventry Gliding Club Ltd throughout the course of the dispute, along with Jenny Wigley of counsel who appeared for the club at the hearing. If you would like to discuss any of the issues raised in this article, please contact Ben Garbett.