Thursday, 24 February 2011

Delay prevents remedy of Council’s mistake


The case of R (Knowles-Fitton) v. Craven DC [2011] EWHC 212 (Admin) is a salutary lesson to local authorities and their legal sections in getting a move on if they are asked to take action to remedy an error made by their authority’s planning department.

In this case, a planning permission had been issued in terms which authorised a significantly larger development than the Council had intended to approve. In such circumstances, it has become the practice for a Council to challenge its own planning permission by the device of arranging for the Leader of the Council to bring an application for judicial review in his or her own name. That was the means by which Craven DC hoped to resolve the error which had occurred in this particular case.

However, as is well-known, an application for judicial review must be brought ‘promptly’, and in any event within three months of the date when the cause of action arose. In practice, this usually means rather more quickly than three months, although the Court does have power to extend time in exceptional circumstances. Where the challenge is to the Council’s decision to grant planning permission it has been established that time starts to run for this purpose from the date on which the planning permission is actually issued (rather than from the date on which a decision to grant planning permission was taken), although in this particular case it was agreed that the relevant ‘start’ date was 16 April 2010, when the Council received formal notification that there was a serious legal query over the planning permission the subject of these proceedings.

Without going into the unfortunate details, the Council’s officers were extremely dilatory in taking steps to remedy the situation arising from the mistaken issue of the wrongly worded planning permission. It seems that they were not even aware that the accepted way of dealing with this type of problem is by the device mentioned above, and it took them until the end of June 2010 to instruct counsel to advise. Counsel’s opinion was received on 14 July 2010 but a decision to commence litigation was not taken until 8 September 2010, by which date the three-month time limit had long since passed. Even then, a further delay of six weeks occurred before proceedings were eventually commenced, which necessarily included an application for an extension of time.

There had in the meantime been numerous reminders from the developers, who naturally wished to know where they stood in the matter and clearly found themselves in a very difficult position, pending a resolution of the confusion over the planning permission.

The judge was extremely critical of the inordinate and inexcusable delay on the part of the Council’s officers, and dismissed the application for permission to bring an action for judicial review of the planning permission on that ground, even though there might otherwise have been an arguable case in favour of relief being granted by the Court.

© MARTIN H GOODALL

2 comments:

  1. There is an interesting situation developing in Milton Keynes at the moment. A large warehouse development was approved by the Council's Development Committee in May 2017 with 23 conditions attached to it. The s106 agreement was signed and decision notice issued in January 2018, however there was a significant administrative mistake made by the Council - 13 conditions were incorrectly left out on the s106 and decision notice.

    The Council made a statement in September (yes, 8 months later) that they had made a mistake - https://edrms.milton-keynes.gov.uk/NorthgatePublicDocs/00399866.pdf

    Negotiations between the Council and developer have continued and a new application was submitted. This was recently approved with 21 conditions, however the developer is not happy with some of the conditions. As a result, they are refusing to sign the new s106.

    The Council appear to be in a real pickle over the administrative mistake and it would appear that it will be a very costly one for them to rectify.

    (Apologies for commenting on an old post, however I found this was the closest post to the topic).

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    1. Just one additional comment. The time within which action in the High Court needs to be taken is now even shorter than it was when I wrote this blog post back in 2011. An application for Judicial Review must now be brought within six weeks of the planning permission being issued. As Andy H. points out, this LPA would seem to have a problem on its hands that may prove difficult to resolve.

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