Planning Decisions Issued By Mistake

Planning has had rather a torrid time in the press over the last few weeks. On 8 September, the Daily Mail published an article describing an unfortunate incident involving Swale and Maidstone Council. Whilst attempting to resolve an issue with the public access system, the Mid-Kent Planning Support Team, which supports both Councils, accidentally published five spoof decision notices that had been generated as part of the software test. The decision notices have caught the public imagination because of the reasons set out on the decisions, which included "Your proposal is whack" "No mate, proper whack", "Incy, Wincy, Spider" and (my own personal favourite) "Why am I doing this, am I the chosen one?"

Believe it or not, the publication of planning decisions by mistake is actually fairly common. South Cambridgeshire District Council and Epsom and Ewell have made similar errors in just the last twelve months. There are also well documented cases of permissions being issued without all the necessary planning conditions (as was the case in Thornton Hall*) or with unfortunate typographical errors.

So, why can't mistakes be easily rectified?  Well, in some instances, they can be.  There are mechanisms in the Town and Country Planning Act 1990 (the Act) for amending planning permissions, although they are reliant on the co-operation of the applicant, as both options require an application to be made to the local planning authority.  

If the mistake is very minor, for example a typographical error, then it can be corrected by way of a non-material amendment under s.96A of the Act. This is only an option for changes that are genuinely ‘non-material’ however, so are unlikely to be of use for more significant errors – such as leaving off a vital planning condition.

The other option available is s.73 of the Act, which allows councils to amend conditions on the face of a planning permission. However, there are significant drawbacks to the use of s.73 of the Act to rectify mistakes, most notably, that approving a s.73 application does not change the original permission. Instead, the application results in an entirely new planning consent, containing the revised conditions – leaving the applicant with a choice of which permission to build out. As such, it cannot be used to ‘undo’ the original grant. It also only allows the amendment of planning conditions, and is therefore, completely useless if the mistake relates to another part of the consent (such as the description of development).

Where the error relates to whether the decision should have been made at all, as was the case in Swale, then correcting it becomes much more difficult. Local planning authorities simply do not have the legal power to unilaterally reverse a planning decision once it has been issued. The reasons for this are very eloquently set out by Lord Justice Sullivan at para 22 of his Judgment in R. (Gleeson Developments Ltd) v Secretary of State, in the Court of Appeal**

"If a planning permission has been granted, whether on appeal by the Secretary of State or by an appointed person, or on an application for planning permission to a local planning authority, there is no power to “withdraw” that planning permission on the basis that there has been an administrative error at some stage in the decision-making process. Once granted, a planning permission may be revoked only under the procedure contained in Sections 97 to 100 of the Act. Although Mr Swift criticised the appellant's reliance on the well-known proposition that the Planning Acts form what has been described as “a comprehensive code”, there can no doubt that they do comprise a very detailed and highly prescriptive legislative code. The code prescribes how planning permissions, once granted, can be revoked, and in Sections 56 and 59 of the Planning and Compulsory Act 2004 it describes the extent to which and the manner in which errors in planning decisions can be corrected under the “slip rule”.

This inability to easily correct administrative mistakes has a long legal history grounded in an old public law doctrine. The doctrine of “functus officio” states that the decisions of officials are final and binding once they are made. They cannot be subsequently amended or revisited by the decision maker (R. v Secretary of State for the Environment Ex p. Reinisch (1971) 22 P. & C. R. 1022, 1025).

In Pioneer Aggregates (UK) Ltd. v Secretary of State for the Environment [1985] A.C. 132, the House of Lords held that planning legislation provided a complete and comprehensive statutory code of planning control. This code sets out the procedures by which permissions are granted and the mechanisms by which they can be revoked or amended. Outside of those express powers, a local authority, or indeed the Secretary of State, has no power to revisit or revoke a planning permission that has been granted (Connors v Secretary of State for Communities and Local Government [2017] EWCA Civ 1850).

There is a mechanism by which the Secretary of State can correct errors contained in planning appeal decisions, known as the “slip rule”, which is set out in Sections 56 to 59 of the Planning and Compulsory Act 2004. However, it is extremely limited in scope. Not only does the “slip rule” only apply to decisions of the Secretary of State (and appointed planning inspectors), but it is limited to a very specific category of “correctable errors”. These are defined as a mistake “which is contained in any part of the decision document which records the decision, but which is not part of any reasons given for the decision”. *”

As such, once decision has been issued, the Local Planning Authority is unable to reverse it unless the decision is:

• Quashed by the High Court, as a result of a judicial review;
• Formally revoked, using the Council's powers of revocation; or
• In the case of a refusal, overturned at Appeal.

Revoking a planning permission under s.97 - s.100 of the Act is not entirely straightforward. A revocation order requires confirmation by the Secretary of State, unless all parties that are likely to be affected by it have confirmed, in writing, that they do not object to it being made. If the order is contested, then a formal hearing will be required. There are also limitations on when a revocation order can be made. The power to revoke a planning permission lapses once the development consented has been completed, and the order itself is not retrospective. A revocation order is ineffective against any works that had already been carried out prior to the date that it was made.

Making a revocation order renders a Local Planning Authority liable to pay compensation to adversely effected parties (s.107 of the Act). The amount payable can be very significant, as the compensation calculation takes the development value of the permission into account. Given the extensive nature of these potential liabilities, it is not unusual for Councils to opt to issue judicial review proceedings to quash the decision instead of choosing to revoke it.  Indeed, it is a decision that they are perfectly entitled to make, as the implications of the cost of the compensation due following a revocation order is a material consideration in determining whether to revoke or modify a permission on in the first place (R. (Health and Safety Executive) v Wolverhampton City Council [2012] 1 W.L.R. 2264).  This is particularly likely in cases where the original permission was issued unlawfully or without proper authority (R. v Bassetlaw District Council Ex p. Oxby [1998] P.L.C.R. 283).

There are also time constraints with judicial review applications.  Civil Procedure Rule 54.5 (5) states that judicial review claims made under the Planning Acts (which includes the vast majority of planning cases) “must be filed not later than six weeks after the grounds to make the claim first arose.” In practice, this means that, as a general rule, local planning authorities only have six weeks from the date of the planning decision being issued, to seek to have it quashed by the Courts.  That said, there are circumstances where judicial review challenges are accepted after the six weeks claim period has expired.

In R. (on the application of Thornton Hall Hotel Ltd) v Thornton Holdings Ltd, the Court of Appeal upheld the quashing of a permission that had been granted five years before the claim had been filed. The case involved a consent for the erection of three marquees in the grounds of a wedding venue in the Wirral.  The permission was supposed to have been a temporary consent, but it was granted without the condition that would have limited its lifespan and required the removal of the marquees after five years. The facts of the case are unique, and well worth reading in full, but the salient points for our purposes are that both the Council and the Applicant appear to have noticed the error fairly early, but acted in a way that obscured it from third parties, and that there was very little to draw the error to the attention of the claimant (who also operated a wedding venue in the vicinity) until the five year period lapsed and the marquees were not removed from the premises, as intended.  As a result of these factors, the Court of Appeal held:

“36.  Finally, this is clearly a case in which the interests of good administration, and indeed the credibility of the planning system, weighed compellingly in favour of the court having the opportunity to hear the claim and, if the claim succeeded, to deal with the council's error. If, as the council has readily acknowledged, the decision notice it issued was issued without lawful authority, it might fairly be described as the antithesis of good administration.”

Thornton Hall is not the only case in which the Courts have agreed to accept a judicial review claim out of time, when it involved an error acknowledged by the Council. In Croyde Area Residents Association v North Devon District Council [2021] EWHC 646 (Admin), the High Court quashed permission some six years after it was granted. Here the rational was that the original permission granted consent over a much wider area than had been intended. In deciding to quash the permission so long after the judicial review period had expired, the court held that:

“83. There is great importance in challenges to planning permission being made with "the greatest possible celerity". This is in the public interest and in the interests of the holders of the permission. The Interested Party is entitled to rely on the grant of permission. However, the prejudice from any reliance on the grant here is real but relatively limited, i.e., the cost of the LDC application and the incidental costs. The real prejudice is the loss of the permission itself. However, that gain was itself unlawful as is conceded and should never have been granted. I would have given great weight to any losses that had been incurred, but in my view future financial gain should be given relatively little weight. The same can be said for future jobs and local economic benefit.

….

86. However, even if I only take into consideration the development of the Service Field, that is a significant intrusion into the AONB, contrary to a host of local and national policies. This case is in my view a more extreme version of Thornton Hall – the interests of the credibility of the planning system weighs heavily in favour of quashing the permission. It would be very hard to explain to a member of the public why a permission which was granted in complete error and where the developer has now got a permission which gives him what he originally sought, i.e., the extension of operating times, should not be quashed.”

As such, whilst there are time restrictions on local planning authorities regardless of whether they decide to pursue a revocation order or a judicial review claim; the time limitations for bringing a judicial review claim are somewhat more malleable. As the restriction on filing a claim is not set out in statute (unlike the time limitations for revocation orders), the courts are willing to accept claims out of time if the mistake is serious enough to threaten the very credibility of the planning system itself.

Whilst there are very limited ways to proceed if a planning application is granted by mistake, there are more options available if the error resulted in a refusal. In that instance, the Applicant could also:

• Appeal the refusal of planning permission; or
• Submit a duplicate application for redetermination, which would qualify for an exemption from the usual planning application fees under Reg. 9 of the current fees order*&.

However, both options have their drawbacks, both for the Council and for the Applicant.  The Planning Inspectorate is still dealing with the implications of the pandemic, which has had an impact on Appeal determination timescales. It is currently taking about 41 weeks on average*! for an appeal to be determined at a hearing. So, appealing the refusal is unlikely to result in a quick resolution for either party.  There are also cost implications to be considered, as the Applicant may have to prepare for an appeal without clear or obvious grounds of refusal. Submitting a duplicate planning application would mean having to go through the entire planning application process again, including updating application reports and carrying out fresh consultation exercises. This is unlikely to be particularly attractive for an applicant, particularly when the decision was issued because of the Council’s mistake.

As such, a “friendly” Judicial Review application is often the most appealing, and practical, option both for the applicant and the Council. Otherwise, they may find themselves in front of a planning inspector, trying to explain the planning judgments behind a scheme being refused on the grounds that it is "proper whack"....

* R. (on the application of Thornton Hall Hotel Ltd) v Thornton Holdings Ltd [2019] EWCA Civ 737

**[2014] EWCA Civ 1118

*” s.59(5) Planning and Compulsory Purchase Act 2004

*& Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012/2920 as amended

*! Median not Mean

A version of this article first appeared in Property Law Journal