Judicial review remedies: Permitted development & Human rights

In a judgment of the High Court handed down on 14 November 2019 in the case of Coventry Gliding Club Ltd. v Harborough District Council [2019] EWHC 3059 (Admin), Mr Justice Swift upheld the gliding club’s claim that the local planning authority had acted unlawfully when it determined an application for prior approval, first by failing to erect a proper site display, and then by failing to have regard to material considerations relating to noise and safety of an access. It had also relied upon an irrelevant fall-back consideration. For a commentary on these issues, please see our previous article “Judicial review: Legal duties for giving publicity to permitted development proposals”.

Next steps

The court will now hold a separate hearing to decide what legal remedy should be awarded to the successful claimant. This will require the judge to rule upon a novel point of law which holds importance in relation to judicial review claims generally where illegality has tainted the smooth operation of the prior approval process under Schedule 2, Part 3 of the 2015 Order.

“Default” permission under the GPDO

Paragraph W(11) of Schedule 2, Part 3 of the 2015 Order provides that (permitted) development may not begin until the occurrence of one of three specified scenarios. The last of these is a ‘default’ situation whereby a period of 56 days has expired without the authority notifying the applicant as to whether prior approval is given or refused (W(11)(c)).
Further, article 7 of the 2015 Order places a specific obligation on planning authorities to make prior approval decisions within the relevant time frame (unless a longer period is agreed in writing: see Gluck v Secretary of State for Housing Communities and Local Government [2020] EWHC 161 Admin), but curiously there is no explicit legal duty for authorities to give actual notice of that decision.

In Coventry Gliding Club, the original proceedings were conducted on the common understanding that the defendant council’s (unlawful) decision had been notified on the 56th day after the applicant’s valid prior approval application had been received. Since the date of the hearing, the council has now adduced fresh evidence showing that it actually gave notice one day later, on the 57th day, which would have been too late to prevent the default situation from arising in any event.

Judicial review remedies: quashing orders

In most ordinary cases where a grant of planning permission is successfully challenged the court will order that the unlawful decision be quashed, with the application then being re-determined. On the face of it, however, a simple quashing order is insufficient to remedy the claimant’s grievance in this case given the applicant’s claim to an accrual of permitted development rights under para W(11)(c).

The question for the court is how to reconcile this inherent conflict with its earlier ruling that the council had acted unlawfully when it determined the prior approval application.

R (aoa) Nunn v First Secretary of State and T-Mobile (UK) Ltd [2005] EWCA Civ 101

A similar question came before the Court of Appeal in Nunn v FSS and T-Mobile [2005] where the council had negligently failed to notify its refusal of a telecoms mast proposal within the requisite period. On the facts of that case the court decided that, notwithstanding the lackadaisical council’s error, this lapse did not interfere with the operator’s accrued rights to erect the mast. The aggrieved claimant could however seek redress in the form of a damages claim against the council pursuant to s.8 of the Human Rights Act 1998, or via a complaint to the Local Government Ombudsman instead.

But Nunn was a telecoms case under Part 24 of the 1995 GPDO. The judge will need to decide whether the facts in Coventry should now lead to the same result, whilst considering differences between the 1995 and 2015 Orders, or whether additional words can be read into the current scheme of legislation (by reference to s.3 of the Human Rights Act 1998) in order to preserve the claimant’s rights to a fair hearing under the European Convention on Human Rights (‘ECHR’).

Ben Garbett of Keystone Law is acting for the claimant Gliding Club in relation to the ongoing proceedings. Please contact him if you would like to discuss any of the issues raised in this article.