Judicial review success, one year from decision granted

By Emma Montlake

Photo showing scale of building, permission issued without amenity conditions threatened the residents

A matter that started with ELF has been successful in a Judicial Review claim, despite being a year since the decision. This is an eminently just decision for local residents and ELF would like to thank ELF members Horatio Waller and Ian Graves and congratulate them on a good result for the local community in Milton Keynes.

In December of last year ELF was approached by two separate individuals on the same matter. Local people in Milton Keynes had discovered that the permission for the enormous new industrial building being built meters from their bungalow homes did not have any of the amenity conditions, as should have been attached to the permission. Awareness of this had first come to light when trees that residents had thought protected, were felled. On reviewing the planning permission it was revealed that all 13 amenity conditions were missing. A sorry situation for local residents as conditions related to landscaping, light and noise were imposed to protect the amenity of neighbouring residents. As we were now over a year since the decision notice had been issued, the question was could we still JR the original decision?

ELF approached Ian Graves, ELF solicitor member at Shakespeare Martineau and Horatio Waller at FTB. Both agreed to undertake the matter under a CFA.

Horatio Waller explains more fully. This extract first appeared on the 29th May – https://www.ftbchambers.co.uk/news/success-judicial-review-claim-issued-1-year-out-time

It emerged after JR was issued that the developer and junior officers of the Council had discovered the mistake soon after the notice was issued, but residents and senior planning officers were kept in the dark for several months. When senior officers discovered the mistake they attempted to rectify the error by encouraging a second application for identical development, subject to a unilateral undertaking revoking the first permission.

Permission on a second application was approved by the DCC, but a decision notice was never issued. The reason why became public knowledge only after JR was issued. The developer had attempted to persuade the Council to drop one of the conditions on the first permission, which controlled access to the site by heavy goods vehicles (HGV), in return for it implementing a second identical permission that included the missing conditions.

This was unacceptable to the Council and the arrangement fell through. The Council then decided to impose a s102 order imposing controls on lighting, but not controlling other matters addressed by the missing conditions. This was only a partial solution, so Mrs Wardlaw issued JR out-of-time to challenge the planning permission. By the time JR was issued, over a year had expired since planning permission was granted and the development was almost complete.

The deadline for issuing JR of a grant of planning permission is six weeks, but the Court has a power under CPR 3.1(2)(a) to extend the time limit which can be sought after the expiry of the six week period. Mrs Wardlaw sought permission to issue JR out-of-time, arguing that there were “very special reasons” why the Court should do so citing Sales LJ’s judgment in Gerber v Wiltshire Council [2016] 1 WLR 547 at [49].

Reliance was also placed on the High Court decision in Thornton Hall Hotel Ltd v Wirral WBC [2018] PTSR 94 where a judicial review claim against a grant of planning permission was allowed notwithstanding that it had been brought five years out-of-time. In that case the planning permission had erroneously omitted conditions specified by the planning committee, including a five-year time limit on the permission, and the claimant had issued the claim with reasonable speed on becoming aware of the mistake. The judgment was recently upheld on appeal ([2019] EWCA Civ 737).

The Wardlaw JR settled after the developer and Council agreed to revisit the proposal of promoting a second application for identical development on the site. The developer dropped its stance that no HGV condition should be imposed and gave a unilateral undertaking that it would cease implementing the first permission and implement the second permission. Planning permission was subsequently granted.

This settlement meant that Mrs Wardlaw could discontinue her claim because the underlying issues had been resolved and the Council had agreed to pay her costs.”

This is the best result the community could have hoped for. There has been subsequent disquiet from local councillors that this building, so out of scale with local homes, was recommended for approval in the first place. At least now, thanks to a great legal team, the community have the protections that they expected.