A growing reluctance to quash?

Martin Edwards analyses a recent trend amongst the judiciary not to quash planning permissions, even where there has been an acknowledged legal error.

For many years now, government has portrayed the planning system in a poor light and as an instrument of delay to development. This was made clear, for example, in the consultation papers surrounding the (then) proposals to streamline the judicial review system and the introduction of the permission stage into statutory challenges. Whether or not the criticisms were always open to debate but, come what may, the changes have now been brought into force and the early signs are that the overall intention of reducing delay to planning cases has been a success. As the Lord Chief Justice’s Report 2015 noted, at the end of October 2015, the time from lodging to substantive hearing had reduced from 46.9 weeks to 27.3 weeks and that the number of “live” cases was down from 314 at the end of 2013 to 222 at the end of October 2015.

However, of equal significance, is the emergence of a trend on the part of the judiciary to exercise its discretion and not quash planning permissions or appeal decisions, even when there has been an acknowledged legal error.

Of course, it has long been the case that judicial review is a discretionary remedy. Just because a legal error has been identified does not mean that a decision must be quashed – see Simplex G.E. (Holdings) v Secretary of State for the Environment (1989) 57 P & CR 306, CA where the Court of Appeal held, in effect, that a planning permission should not be quashed if the identified legal error would have made no difference to the ultimate decision made.

Five recent decisions, in as many weeks, suggest that the courts are increasingly relying upon this approach. On 3 February 2016 the Court of Appeal dismissed the appeal in Smech Properties Limited v Runnymede Borough Council and others [2016] EWCA Civ 42. Lord Justice Sales noted that Patterson J at first instance had rejected two of three grounds of challenge. However, she had found that the Council had been given, and followed, incorrect advice in the officer’s report regarding the impact of a mixed use development on a former Defence Evaluation and Research Agency site in the Metropolitan Green Belt. Nevertheless, on the basis of the principle in Simplex G.E. (Holdings) the judge assessed that, had the correct advice been given, the council would inevitably still have decided to grant planning permission for the development so she dismissed the claim to quash the permission. The Court of Appeal upheld her decision. It held that it was abundantly clear that the judge had very well in mind the stringent test in paragraph 87 of the NPPF that there needed to be “very special circumstances” to justify permission for development in the Green Belt and that she had been entitled to make the assessment that the council would have made the same decision had it been properly advised.

On 23 February 2016 the Court of Appeal allowed the local planning authority and developer’s appeals in the solar farm case of R (Gerber) v Wiltshire County Council and others [2016] EWCA Civ 84. This was a case where a planning permission for a solar farm was quashed by Dove J in the High Court leaving the developer potentially facing having to bear substantial costs in dismantling the part-completed farm. The appellants wisely did not challenge Dove J’s first instance decision on three of the substantive grounds. As Lord Justice Sales noted “It is a testament to the quality of the judgment in relation to those grounds that the appellants recognised that an appeal could not succeed in relation to them”. Instead the appellants focussed on two aspects of Dove J’s judgment – his decisions to extend time under CPR Part 54.5 so that the claim could be brought a year after the planning permission had been granted and to exercise his discretion under section 31(6) of the Senior Courts Act 1981 to quash the permission. The Court of Appeal held that the judge erred in extending time, especially as the claimant had no proper grounds for delaying proceedings and no reasonable explanation for the delay in bringing the claim. Whilst it was therefore not necessary to consider the second decision the Court of Appeal indicated that it would have set aside the judge’s exercise of discretion and determine that issue afresh.

In a slightly different context, on 5 February 2016 the Court of Appeal also allowed an appeal by the Secretary of State against a first instance decision to quash a planning inspector’s decision letter in relation to a mobile home on Green Belt land despite there being serious errors in the inspector’s decision to grant planning permission. In Secretary of State for  Communities and Local Government v South Gloucestershire Council and AZ [2016] EWCA Civ 74 Lord Justice Lindblom acknowledged that the judge at first instance described the errors of law in the inspector’s handling of the housing land supply issue as “serious” and commented that he could see why he did so because the errors went to an important theme of national planning policy in England, namely the requirement for a local planning authority to be able to show, at all times, a five-year supply of housing land. This error was clearly a powerful factor in the judge’s exercise of his discretion. However, the judge had also concluded that if the inspector’s decision was allowed to stand it could be relied upon “as a precedent in order to cast doubt in substance on the efficacy of its Core Strategy, in particular Policy CS15 in the coming years”. Lord Justice Lindblom however held that the “precedent” factor should not have been a consideration in the exercise of the judge’s discretion in this case and that justified the Court of Appeal setting his decision aside and, rather than remitting the case to the judge, it exercised its own discretion to uphold the inspector’s decision to grant planning permission in what it considered to be an “exceptional case”. Some might not agree that the facts of the case were “exceptional” but these three cases demonstrate that the Court of Appeal, in one month, twice overturned first instance decisions to quash and upheld a first instance decision not to quash.

In the High Court, on 16 March 2016, in Wychavon District Council v Secretary of State for Communites and Local Government and Crown House Developments Ltd [2016] EWHC 592 (Admin) Coulson J exemplified this approach in another statutory challenge following a planning appeal. Whist he rejected the claimant local planning authority’s challenge to an inspector’s decision he then went on to conclude:

50. It is of course strictly unnecessary for me to consider this aspect of the case because I have not upheld the criticisms of the inspector’s approach. But, if I was wrong about that, I would have no hesitation in exercising my discretion in favour of not quashing the inspector’s decision. 


51. The relevant legal test is set out in the recent case of Europa Oil and Gas Ltd v SSCLG [2014]EWCACiv.825. In that case, Ouseley J was not satisfied that, without the error made by the inspector as to the interpretation of ‘mineral extraction’, the decision would inevitably have been the same. The Court of Appeal agreed. They held that the judge was entitled to find that the decision might have been different but for the inspector’s error and thus to exercise his discretion to quash the decision. 


52. As noted above, the most that can be said against the inspector in the present case is that he did not say in terms that the balancing exercise that he undertook was pursuant to s. 38(6) of the 2004 Act, or say that the presumption in favour of sustainable development was simply a material consideration. The criticisms are ones of form; they are not criticisms of substance. In those circumstances, even if the inspector had worded his decision letter in a clearer way, that would have made no difference to the outcome. I reject the invitation to quash the inspector’s decision on that ground as well. 


It is noteworthy that whilst Coulson J recognised that he did not have to provide this indication of what his approach would have been had he found in favour of the local planning authority, he nevertheless did so. Then the next day, 17 March 2016, in the context of a planning judicial review Coulson J adopted the same approach. In R (Surringer) v Vale of Glamorgan Council and Raymond Brown Minerals and Recycling Ltd [2016] EWHC 494 (Admin) he rejected the challenge but in relation to one of the grounds, based on an alleged EIA publicity failure, he went on to observe that even were he wrong on that point prejudice, let alone substantial prejudice, as a result of what could then be termed a technical breach, had simply not been made out. He then went on to say:

74. On this issue, Counsel were agreed that the relevant test is that set out in R (Champion) v North Norfolk District Council [2015] 1 WLR 3710. The relevant part of the speech of Lord Carnwath can be found at paragraphs 54-58. The test is set out at paragraph 58:

“Allowing for the differences in the issues raised by the national law in that case (including the issue of burden of proof), I find nothing in this passage inconsistent with the approach of this court in Walton. It leaves it open to the court to take the view, by relying "on the evidence provided by the developer or the competent authorities and, more generally, on the case-file documents submitted to that court" that the contested decision "would not have been different without the procedural defect invoked by that applicant". In making that assessment it should take account of "the seriousness of the defect invoked" and the extent to which it has deprived the public concerned of the guarantees designed to allow access to information and participation in decision-making in accordance with the objectives of the EIA Directive.”

80. Applying that test, I am confident that the contested decision would not have been different if the July and August information had been the subject of the full publicity and consultation regime. The defect, if that is what it was, was not serious (because the material was the subject of responses in any event) and the extent to which the public has been deprived of responding is very limited, given that the information was on the VoG website in any event. Furthermore, the information was neither significant nor new.

As Lord Justice Sales observed in the Gerber case at paragraph 53: “In general terms, the application of domestic law in relation to time limits and remedial discretion in the context of planning cases does not offend against the EU principles of equivalence (or non-discrimination) and effectiveness as regards procedure and remedy: see Walton v Scottish Ministers [2012] UKSC 44; [2013] PTSR 51; and R (Champion) v North Norfolk District Council [2015] UKSC 52; [2015] 1 WLR 3710, [54]-[59] per Lord Carnwath JSC.”

It would seem, therefore, that the courts may be beginning to run with this approach and that claimants will have to demonstrate not only that a legal error has been made but that clear substantial prejudice has resulted. If so then the days of the technical knockout are over.

Martin Edwards is a barrister at Cornerstone Barristers. He can be contacted on 020 7242 4986 or This email address is being protected from spambots. You need JavaScript enabled to view it..