Ownership certificates and planning

Nikki Fonseka explains the importance of correct ownership certificates in planning applications.

The recent case of Bishop, R v Westminster City Council & Ors [2017] EWHC 3102 (Admin)  illustrates the importance of correct ownership certificates when submitted planning applications. All too often applications are submitted and determined with incorrect certificates and as an ex in-house local authority lawyer I can testify to this still being a regular occurrence, with many involved in the process failing to see the importance of getting it right, perhaps partly due to previous Court decisions which upheld permissions despite the certificates being incorrect albeit for good reason in the circumstances.

Applicants and agent should beware however as experienced challengers will look for these basic errors first when forming their plan of attack when aggrieved by decisions and the reality is that a failure to correctly identify owners and complete a correct certificate could result in any subsequent planning permission being quashed by the Court in the event of judicial review.

In the Bishop case above, referred to as “a Cautionary Tale”, an application was submitted to extend a flat (number 10) into the airspace above it. Discussions between the leaseholder and the freeholder broke down however and a proposed further application did not come forward. Later the freeholder, with the help of his agent, submitted a new application for a new flat above number 10. The application was submitted in the name of the agent with a certificate A (which states that the applicant is the only owner) and permission was subsequently granted without any notices being served on the leasehold owner of number 10 (Bishop). When he became aware of the permission he made an application for judicial review on the basis that he was not notified and the certificate was incorrect.

By way of background the requirements in relation to certificates are contained in the Town & Country Planning Act 1990 and the Town and Country Planning (Development Management Procedure) (England) Order 2015 which require notices to be served on owners of the land and requires the applicant to certify compliance in the application. Section 65 of the 1990 Act states that a local planning authority “shall not entertain” an application unless the requirements are met and that any person who knowingly or recklessly issues a false or misleading certificate is guilty of an offence.

Albeit the above provisions are mandatory in nature the Court does retain discretion as to whether to quash a decision and it was made in clear the case of Main v Swansea City Council [1984] that a defect does not make a grant a complete nullity but subject to the court's discretion to quash. Subsequent cases have also highlighted that where no prejudice has occurred as a result of the non-compliance the permission will stand (O’Brien v West Lancashire Borough Council [2012]).

Turning back to our case in point, and bearing the above in mind, the Court considered whether the outcome would have been different had Bishop been consulted. In this case they considered that whilst permission may still have been granted it may well of been in a different form. The Court also considered that the agent had recklessly issued the certificate which was relevant in this case. The decision was quashed.

So, what can an applicant and agent do? In the absence of a correct certificate and where permission has not yet been granted, correct the position by serving the necessary notices and allowing the statutory periods to elapse. Should an application then be made to the Court due to an error in the certificate the application is likely to fail on the basis that no prejudice has arisen. Ultimately a correct certificate is best and this case is a reminder to all.

Nikki Fonseka is Head of Planning at Clapham & Collinge Solicitors in Norfolk. She can be contacted on 01603 974860 or This email address is being protected from spambots. You need JavaScript enabled to view it.. Nikki has more than 16 years’ experience in the legal profession, the last 11 of which have been as a public sector lawyer.