Richards, R (on the application of) v South Bucks District Council

Where permitted development rights grant planning permission subject to a prior-approval procedure, consultation duties do not make the permission conditional on the local planning authority completing consultation or giving a decision within the prescribed period. If the period expires without the required notice, the permission may take effect. A procedural failure may nevertheless justify relief where it caused legally relevant prejudice, such as a real prospect that a timely decision would have required prior approval. A challenge to the substantive non-decision requires proof that it was Wednesbury unreasonable. The prior-approval question is a summary screening exercise, not a full planning assessment, although relevant considerations must still be taken into account.

A telecommunications mast was erected pursuant to planning permission granted by the Town and Country Planning General Permitted Development Order 1995. The developer had applied for a determination whether prior approval of the siting and appearance was required. The council failed to respond within the applicable 56-day period, then notified the developer that prior approval was not required after the mast had been erected.

The claimant sought judicial review, principally challenging the later notification and alternatively seeking declarations or an order requiring removal of the mast. The central issues were whether the consultation and prior-approval provisions affected the validity of the planning permission, what remedy followed from the delay, and whether the council’s substantive determination was unlawful.

1. The claim was dismissed. The permission granted by the Town and Country Planning General Permitted Development Order 1995 was not conditional upon the local planning authority completing consultation or performing its duties within the 56-day period. Paragraph 7 operated so that, absent the specified notices, development could proceed when the period expired. The consultation obligations could not be construed as imposing a condition dependent upon a third party’s performance.
2. Residents notified under the Order had a right to have their representations properly considered. That right did not authorise the court to alter the clear effect of the Order or to interfere with the developer’s property right created by the grant of planning permission.
3. A procedural failure could justify relief only if it caused relevant prejudice. The claimant therefore had to show that a decision within time would probably have been different in the relevant sense, namely that prior approval would have been required and might then have been refused. Mere distress caused by the mast’s presence was insufficient.
4. The later notification could be quashed only if it was Wednesbury unreasonable: a decision which no reasonable authority, properly directing itself to the relevant considerations, could have made. The court found no such error. The council was deciding only whether a fuller prior-approval process was needed, not whether the development should be approved after a full planning assessment.
5. The council had regard to the development plan policy, possible alternative sites and health concerns. The evidence did not establish that any material consideration had been ignored, or that fuller consideration would necessarily have produced a different conclusion. R v London Borough Lambeth ex parte Sharp was distinguishable because it concerned consultation as a necessary preliminary to a resolution granting planning permission, whereas consultation here arose after permission had already been granted.

Costs were assessed at £10,000.

First-instance judicial review in the Administrative Court. The judgment records the earlier Court of Appeal decision in R v Staffordshire Moorlands District Council ex parte Bartlam, which had refused permission for judicial review and upheld that refusal on the effect of the earlier permitted-development procedure.