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Oliver Bussell

Partner - Sevenoaks and Ashford

20th May 2021

Historic quash – is your planning permission valid?

Obtaining planning permission can be a drawn out and uncertain exercise at the best of times for developers, but a recent case has illustrated the potential for permission to be quashed many years after grant….

The facts

A 2014 planning permission for a leisure park in Devon allowed the siting of caravans across a wide area, including on a green field that was part of the park (and part of an area of outstanding natural beauty).  The original application had included the green field by mistake.  That mistake was not spotted by anybody at the time – or for many years subsequently.  Eventually the owner sought to use this error to succeed with a certificate of lawful proposed development (CLOPD) under the Town and Country Planning Act.  This on the basis that the 2014 consent had inadvertently granted permission for caravans on the green field.

The planning permission was quashed by the High Court in March 2021 (Croyde Area Residents Association, R (On the Application Of) v North Devon District Council [2021]).

The judgment

The fundamental point which the court recognised was that the local planning authority had acted unlawfully in granting permission in 2014. That is because, in failing to assess the application in terms of its impacts on the green field and its environs, it had not taken into account all the “material considerations” relevant to the application – including the impact of the development on the AONB.

Similarly, the full area of the application site ought to have been the subject of a screening decision under the Environmental Impact Assessment Regulations.

Another fundamental error was that the ownership certificates submitted with the application had been wrongly issued – there were other landowners who were not notified of the application in 2014. Although it is fairly common for planning permissions to be upheld even where ownership is wrongly certified (for example where no prejudice can be shown), in this case at least one of the landowners was strongly opposed to the development and therefore the failure to properly certify might well have been an operative error of law.

The result was that even this very substantial delay on the part of the Claimant and the financial prejudice to the owner was nonetheless outweighed by the harm to the surrounding AONB.

Comment

Landowners are entitled to rely on a grant of planning permission unless a court has decided otherwise.  And any challenge to grant of a consent – by application for judicial review – has to be made promptly because of the need for certainty.  The longer the delay, the more difficult it is for a challenger to make the case that the consent should be quashed.

In this case mistaken grant of consent over the green field had gone unnoticed for 4 years – so the effect of the wrongful grant was not readily apparent.  The decision to make an issue of it was the owner’s, and they have cause to regret that now because even without the delay factor, it was pretty clear that the impacts of the development including the green field had never been assessed.  As the Judge commented, it was, “close to inconceivable” that the 2014 permission would have been granted if the full extent of its impacts had been understood.

Would the position have been any different if the land had been sold with the benefit of that permission to an unsuspecting purchaser?

It really depends whether the outgoing vendor had spotted the error on the planning permission, or made any reference about it to the local planning authority, or asked the buyer to place reliance on it.  Once the issue came before the courts it is unlikely that the decision would have been any different.  A prospective purchaser should take great care to have the planning permission analysed because of the possibility of errors like this one.  It’s also important because of the possibility that there are onerous planning conditions on the consent which are still capable of enforcement, even where there has been a breach for a period of time.  Finally, establishing clearly with a vendor exactly what representations they have made to the council about planning matters is important because of what it shows about the vendor’s understanding of the planning position.  A new owner could potentially have two avenues for redress – misrepresentation by the seller or a claim against their own solicitor acting on the purchase.  But again it would come down to the extent to which the solicitors had been asked to analyse the terms of the 2014 planning permission.

On the facts it seems overwhelmingly likely that had the error with the plan simply been regarded as just that – an error – the planning permission would never have been analysed and therefore would never have been quashed.

Conclusion

This is a very unusual case – thankfully – but planning law is a technical and highly codified area of law.  The developer who makes a simple error in submitting an application – even if that error seems to benefit them – may find very serious consequences arising from that.  Purchasers also need to take care to ensure that what they think they are buying is fully authorised in law: not just in terms of the development permitted but the conditions to which it is subject.  At Rix & Kay we can review and assist with ensuring the lawfulness of planning applications, establishing the parameters of consents to give the certainty that landowners need.

Contact our Commercial property lawyers in Sussex and Kent

Oliver Bussell is Partner and Commercial Property Lawyer at Rix & Kay. For more information, please email oliverbussell@rixandkay.co.uk or call 01732 448050

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