A High Court judge has declined to hear a judicial review application concerning the inclusion of an ‘informative’ into a certificate of lawfulness of existing use or development ("a CLEUD").
In QM Developments (UK) Ltd v Warrington Borough Council  EWHC 1511 Mr Justice Dove said that the case between QM Developments (UK) and Warrington Borough Council could be settled by a planning appeal or civil case, without the court’s intervention.
QM had applied for a CLEUD for a site in Risley. Warrington granted this but added an ‘informative’ that a planning condition relating to land contamination had not been discharged.
Planning consent was given in 2007 subject to a condition on remediation being met and two homes were built, one of which was sold to a Mr and Mrs Brown.
They were later embroiled in disputes with QM, including their claim that a failure to discharge the planning condition meant the property could not be resold.
Following lengthy negotiations Warrington issued a certificate in August 2019 with the ‘informative’ that the disputed condition “was not fully discharged and will require the submission of additional details”.
A Warrington officer said this was imposed because “we had no way to conclude that sufficient remediation had taken place”.
QM then applied again for a certificate without the condition, based on the contention that Mr and Mrs Brown’s home was lawfully built, that the remediation condition was never valid or lawful and given the method of construction described in the approved planning application it could never have been technically implemented.
It also argued there was no legal basis for the ‘informative’ and that it was irrational and unlawful for Warrington to impose it.
Warrington argued that the High Court should not entertain QM’s application as there were alternative remedies open including a civil action between QM and the Browns and a planning appeal to secure a certificate without the ‘informative’.
Even though the appeal was pending, QM argued that exceptional circumstances justified the judicial review application because it was “in an impossible position, because it needed to have an answer to the question as to whether or not the informative had a lawful basis and that answer could only properly be delivered through an application to the Administrative Court for judicial review”.
It also said the civil case was not capable of competently dealing with the issues of planning law which arose.
Dove J concluded: “I am unable to accept that there are any exceptional circumstances in the present case which would justify the court considering this application for judicial review, in circumstances where, in my judgement, taking the matter to appeal is capable of providing the claimant with an adequate alternative remedy.”
He said a planning inspector would be experienced in dealing with the issues and there was no reason why the court that heard the civil case between the Browns and QM “is unable or lacks the expertise to resolve that dispute…it is always open to that court to make particular provision in relation to the expertise of the judge hearing the case”.