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Court Allows Judicial Review 6 Years after Planning Permission

Posted on 27 April 2021

In R (Croyde Area Residents Association) v North Devon District Council [2021] the High Court quashed a planning permission for an extension to a holiday park six and a half years after it was granted. The usual time limit for a judicial review in planning matters is six weeks.

The Council granted planning permission for extended opening for a holiday park in 2014. One of the "approved" plans significantly, but unintentionally, increased the area of the holiday park. The Officers report to planning committee said: "This planning application does not propose increasing the amount of holiday accommodation or associated facilities in this area".

When the owner noticed that in reality it did, it applied for a Lawful Development Certificate (LDC) to enlarge the holiday park. The LDC was refused by the Council, but granted on appeal.

A local group then brought a judicial review against the grant of planning permission. On the face of it this claim was brought out of time. It also raised the question of what would quashing the permission mean for the LDC.

There have been other recent cases where judicial review was allowed after the six week period. The key considerations are whether the claimant acted promptly and if they were able to bring the challenge sooner. The court also needs to balance prejudice caused to the developer, and the public interest in good decision-making. The key for the court is "fair balance".

In this case when balancing fairness to the developer the court took into account several case specific facts. Namely, the developer had not relied on the permission to expand the site, had the extent of the site been recognised it would likely have required an environmental impact assessment to have been carried out, the location of the development was in an area of natural beauty (AONB) and the development as consented was contrary to a number of development plan policies.

The developer had also failed to notify the owners of the extended site (including the National Trust) when it submitted the application, so they were in the dark. Moreover, the Owner itself had not realised the error in the permission for four years. This affected the claimant's knowledge of the circumstances and ability to bring a claim. Case law is clear that claimants must act promptly “unless very special reasons" can be shown.

After the developer had realised the error in the permission, the Council refused the LDC. From the claimant's perspective this meant that there was no need to act. The court was happy that this constituted "very special reasons" and the "proper notice" had not been given to the claimants to enable them to act sooner.

The wider concern for developers here is that the error was a matter of public record. None of the parties had realised the error, but they could have. The information was available. Analysis of the plans would have revealed the mistake.

The Developer also raised the argument that quashing the planning permission would remove the benefit of the LDC. The judge was clear that the LDC establishes lawfulness on the date it was issued. At that point, the planning permission was "alive". The planning act states that an LDC is subject to any material change before the development is implemented. Quashing the planning permission was found to be a material change. The judge made an interesting observation: “In the vast majority of cases the existence of an LDC will be an overwhelming reason not to quash a planning permission".

The Croyde case was held to be exceptional. Although this statement from the court may give developers some comfort when relying on LDC's.

There is no doubt that this case indicates a more expansive approach to interpreting the time limits for bringing judicial review. It also creates doubt about relying on LDC's. However the context of the development in an AONB, lack of loss to the Developer, breaches of planning policy and to maintain credibility of the planning system as a whole provides some comfort that the court will use its discretion to extend the six week judicial review period sparingly.

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