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.


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