Corbett v Restormel Borough Council & Anor

The court has power to refuse to quash an unlawful planning decision. The exercise is an evaluative judgment balancing the principle of legality against legal certainty and the consequences of granting or withholding relief.

Relevant considerations include delay, reliance, prejudice to an innocent landowner, the public planning consequences, the availability of compensation, and whether quashing would achieve any practical benefit. An applicant challenging planning permission should normally act with urgency, although the application of that principle depends on the circumstances.

The appellant, a council taxpayer and councillor, challenged the refusal of a deputy High Court judge to quash an unlawfully granted planning permission. The permission had already been modified by the Secretary of State under the Town and Country Planning Act 1990, removing the relevant retail use and giving the interested landowner a potential statutory claim to compensation.

The deputy judge accepted that the Council had acted unlawfully but declined to quash the permission. He considered the absence of remaining planning harm, the landowner’s innocence and reliance, substantial delay, the costs of the modification procedure, and the likely compensation consequences. The central issue was whether the refusal to quash was legally justified and whether the Court of Appeal should substitute its own judgment.

1. Appeal dismissed. The Court of Appeal upheld the refusal to quash the unlawfully granted planning permission. Lord Justice Schiemann gave the principal judgment; Lord Justice Sedley agreed with the result and added observations, and Mr Justice Blackburne agreed with Schiemann LJ’s reasons.
2. The argument that an unlawful permission should be treated as having had no legal existence, so that quashing followed automatically, was rejected. Individuals are entitled to rely on public decisions as lawful until they are quashed. That principle of legal certainty must be balanced against the principle of legality, which requires public bodies to act within their powers.
3. The decision whether to quash is properly regarded as an evaluative judgment rather than a purely discretionary act. The appellate court may use its own judgment, although it should give substantial weight to the lower judge’s assessment, particularly where he has relevant planning and compensation experience.
4. There was no remaining adverse planning consequence because the Secretary of State’s modification had removed the harmful retail use. Parliament had provided compensation in principle under sections 100 and 107 of the Town and Country Planning Act 1990. The landowner was innocent, had relied on the permissions, and would lose its compensation rights if the permission were quashed. Those matters, together with the substantial delay and expenditure, justified withholding relief.
5. The court reaffirmed that a challenge to planning permission should generally be brought with urgency. The practical application of that principle depends on the facts, including what has occurred meanwhile and the consequences for the parties and the public. The present proceedings would achieve no planning benefit and might merely transfer the financial burden from public funds to an innocent landowner.
6. Sedley LJ considered that the relevant considerations did not depend on the appellant’s standing or interest. He also observed that the statutory focus on delay in section 31(6) of the Supreme Court Act 1981 could distract from the wider evaluative judgment required.

• Court of Appeal (Civil Division): dismissed the appeal and ordered costs to be assessed or agreed.
• Deputy High Court judge: held that the Council had acted unlawfully in granting the planning permission but refused, as a matter of judgment, to quash it.