Nunn, R (on the application of) v First Secretary of State & Ors

Where a permitted-development scheme is capable of operating compatibly with Convention rights, section 3 of the Human Rights Act 1998 does not permit the court to re-write it because a local authority has operated it incompatibly in an individual case.

An operator which lawfully obtains planning permission under the Town and Country Planning (General Permitted Development) Order 1995 cannot be deprived of that permission through an enforcement appeal merely because the authority's late notice deprived a neighbour of an Article 6 hearing. The remedy, if any, lies against the authority responsible for the breach, and may be financial.

T-Mobile proposed a telecommunications mast below 15 metres in height. It applied to Leeds City Council for a determination whether prior approval to the mast's siting and appearance was required under the Town and Country Planning (General Permitted Development) Order 1995.

The council resolved to refuse prior approval, but notified T-Mobile after the 56-day period. T-Mobile erected the mast on the basis that it had planning permission. The council served enforcement notices. On T-Mobile's appeal under the Town and Country Planning Act 1990, the planning inspector held that the late notice meant that there had been no breach of planning control and quashed the notices without considering the planning merits.

Dr Nunn sought judicial review. She contended that the council's late notice had deprived her of an Article 6 determination and that the inspector should have considered the merits and withdrawn the planning permission.

1. The application was dismissed unanimously. Waller LJ gave the principal judgment, with which Laws LJ and Wall LJ agreed. Dr Nunn's Article 6 rights had been infringed because the local planning authority failed to make its decision refusing prior approval effective within the prescribed period. This deprived her of a determination of her objections concerning health, appearance and property value by an Article 6-compliant decision-maker.

2. The infringement did not make the permitted-development scheme unlawful or incompatible on its ordinary construction. The Town and Country Planning (General Permitted Development) Order 1995 and the Town and Country Planning Act 1990 could operate compatibly with Convention rights. Per Laws LJ, a statutory measure is not Convention-incompatible merely because it can be operated in a manner which violates an individual's rights.

3. Section 3 of the Human Rights Act 1998 could not be used to insert a qualification that would undo planning permission lawfully acquired by an innocent operator following the authority's failure to give notice in time. Such a construction would impermissibly re-write the scheme and take away T-Mobile's accrued rights.

4. The inspector correctly decided the appeal under section 174(2)(c) of the Town and Country Planning Act 1990. Once the time limit had expired without effective notification of refusal, T-Mobile had planning permission and there was no breach of planning control. The inspector had no jurisdiction in that enforcement appeal to remove the permission or determine the consequences of the authority's Article 6 breach.

5. Any remedy lay, if at all, against the local planning authority, which alone caused the ineffective determination. The court did not determine that claim, but indicated that damages under section 8 of the Human Rights Act 1998 might be available. Judicial review was refused.

• Court of Appeal (Civil Division): dismissed Dr Nunn's application for judicial review of the planning inspector's decision and refused permission to appeal to the House of Lords.
• Planning inspector: allowed T-Mobile's enforcement appeal on the ground that there was no breach of planning control, and quashed the enforcement notices without determining the planning merits.