Gavin, R (on the application of) v London Borough of Haringey & Anor

Where a planning permission is granted without complying with publicity or environmental-impact-assessment requirements, the errors may ordinarily justify quashing it. However, undue delay activates the discretion under section 31(6) of the Supreme Court Act 1981. The court must balance the seriousness of the legal error and prejudice to the claimant against hardship or prejudice to the developer and detriment to good administration.

In planning cases, certainty and reliance on the planning register are relevant independently of proven third-party loss. A developer is generally entitled to rely on the planning authority’s compliance with its procedural responsibilities, unless the developer caused or contributed to the failure. Declaratory relief may be granted where a quashing order would cause disproportionate hardship.

The claimant sought judicial review of planning permission granted by the London Borough of Haringey to Wolseley Centres Limited for redevelopment at 460 Archway Road. The application had not been publicised in a newspaper circulating in the relevant area, and no site notice had been displayed. The council had also failed to adopt an environmental-impact screening opinion.

The claim was commenced approximately 32 months after the grant of permission. Permission to apply for judicial review had already been granted, but the substantive issue was whether relief should nevertheless be refused under section 31(6) of the Supreme Court Act 1981 because of delay, hardship, prejudice or detriment to good administration.

1. Legal errors. The proposed development was major development within article 8(4) of the Town and Country Planning (General Development Procedure) Order 1995. The council admitted that its newspaper advertisement did not satisfy article 8(4)(b), because the newspaper did not circulate in the site’s postcode area. That failure substantially prejudiced the claimant by denying him an opportunity to make potentially substantial representations. The court did not need finally to determine whether article 8(4)(a) had also been breached.
2. The application was a Schedule 2 application under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. Regulations 7(1) and 5(4) required the council to adopt a screening opinion. It failed to consider whether the development was likely to have significant environmental effects. Applying Berkeley v Secretary of State for the Environment [2001] 2 AC 603, that failure would have required quashing on a timely challenge.
3. Delay and discretion. The delay was undue and extremely long. Under section 31(6), the court could refuse relief if quashing would be likely to cause substantial hardship or prejudice, or would be detrimental to good administration. The strict approach in Berkeley v Secretary of State for the Environment did not remove that discretion where there had been undue delay.
4. The claimant’s lack of knowledge, caused by the defective publicity, substantially explained the delay. Once he became aware of the development, he investigated and acted with reasonable speed. His conduct therefore did not materially count against relief.
5. Wolseley faced very substantial financial exposure from work undertaken and materials ordered in reliance on an apparently valid permission. It was not unreasonable for it to continue works after complaints and proceedings had begun, particularly as no injunction had been sought and the claimant could not provide a cross-undertaking in damages. The developer was entitled to rely on the council’s performance of its procedural duties and was not required to monitor each stage of the authority’s compliance, absent conduct causing or contributing to the failure.
6. Wolseley’s commencement of works in breach of planning conditions counted against it, but the breaches were principally temporal and the required approvals were expected to follow. They did not outweigh the hardship and prejudice arising from quashing.
7. Detriment to good administration was a distinct relevant factor. Planning permissions generate reliance by developers and others, and late quashing may undermine certainty. That factor was secondary to the hardship or prejudice to Wolseley, and independently supported refusal in principle.
8. The court therefore refused a quashing order. It granted a declaration that the council had failed to comply with the relevant publicity and environmental-impact-assessment requirements, leaving the planning permission valid.