Court of Appeal dismisses appeal over quashing of planning permission issued six years earlier

The Court of Appeal has upheld the High Court’s quashing of a planning permission issued by Wirral Metropolitan Borough Council in error six years earlier.

In March 2018 Mr Justice Kerr said he was satisfied that the decision notice did not faithfully reproduce the decision made by the planning committee and that the cause of the error was likely to have been human failing.

The background to the case was that in December 2011, Wirral granted unconditional planning permission for three marquees in the grounds of Thornton Manor, a grade II* registered garden, without any time limit.

Wirral and Thornton Hall Hotel, a competitor to Thornton Manor, argued that this was an error that should be rectified as the council’s planning committee had intended permission should depend on several conditions, one of which was that it would lapse in December 2016.

However, the document formally granting the permission erroneously omitted all the conditions. The marquees therefore remained in place after December 2016 with bookings continuing to be taken.

Mr Justice Kerr said he would allow the case out of time as Thornton Manor “bears considerable responsibility for the lateness of the claim because it knew of the error and chose to remain silent about it”.

Thornton Manor appealed Mr Justice Kerr’s ruling. The appeal raised two main issues:

1. In view of the delay of more than five and a half years, whether the judge erred in extending time for the claim to be brought, under CPR r.3.1(2)(a); and
2. Having regard to the substance of the claim, whether he was wrong not to exercise his discretion to refuse relief under section 31(6) of the Senior Courts Act 1981.

The Court of Appeal rejected the appeal. The Master of the Rolls Sir Terence Etherton, Lord Justice Lindblom and Lord Justice Irwin said: “The opposite conclusion would not meet the justice of this particular case. No precedent is being set here. We stress once again that the court will not lightly grant a lengthy extension of time for a challenge to a planning decision by a claim for judicial review, nor will it lightly grant relief after a long delay. It will insist on promptness in bringing such challenges in all but the most exceptional circumstances. Here the circumstances are most exceptional. They are wholly extraordinary. This is a case where it can truly be said that the exception proves the rule.”

Kings Chambers, whose Alan Evans appeared for the council in the High Court and the Court of Appeal, said: “The Court’s judgment contains, in the context of a “wholly extraordinary” set of circumstances, a valuable restatement of the timing requirements for judicial review in planning cases, a useful discussion of when a planning permission is unlawful on the basis of lack of authority to issue it and a clear illustration of the principles to be employed in the exercise of the court’s discretion under section 31(6) of the Senior Courts Act 1981 in cases of undue delay in making an application for judicial review.”