Orange PCS Ltd & Ors, R (on the application of) v London Borough of Islington

A prior-approval determination under the Town and Country Planning (General Permitted Development) Order 1995 defines the permitted development, but it is not necessarily equivalent to planning permission granted by a local planning authority. A later designation of land as a conservation area does not, without more, remove permission already granted and defined under the Order. The appropriate statutory mechanism for restricting the resulting permitted development rights is ordinarily an Article 4 direction, which may require a fresh planning application and may engage compensation provisions. Judicial review may be the preferable remedy where the central issue is an authoritative question of law, even though an enforcement appeal could also determine that issue. The court’s decision on remedy remains discretionary and fact-sensitive.

The claimants challenged notices issued by the London Borough of Islington withdrawing varied enforcement notices concerning telecommunications equipment at Canonbury Telephone Exchange. The equipment had been installed under Part 24 of the Town and Country Planning (General Permitted Development) Order 1995 following a prior-approval application. The site was later designated as land within a conservation area. The authority contended that the designation retrospectively removed the permitted development rights and that the installation was therefore unlawful.

The principal issue was whether the conservation-area designation invalidated the prior approval or otherwise prevented reliance on it. A subsidiary issue was whether the claimants should instead pursue their statutory enforcement appeal.

1. Withdrawal notices quashed. The court held that the conservation-area designation did not remove the permission previously granted and defined through the Part 24 prior-approval process. The fact that some work had not complied with the submitted details did not affect the legal analysis.
2. A grant under the Development Order is not a mirror image of planning permission granted by the local planning authority. Where no prior approval is required, no acquired right to develop arises until the development is substantially completed. The position is materially different where prior approval has defined the extent of the permission.
3. The court was inclined to reject the claimants’ construction of the word “would” in Part 24 A.1(h), and considered that the legislation alone did not clearly show that conservation-area designation withdrew an existing defined permission. The reasoning in R(Watts) v Secretary of State for the Environment, Transport and the Regions [2002] EWHC 993 Admin turned on the different wording and circumstances of Class B and was not helpful on the present issue.
4. The decisive consideration was Article 4. The statutory scheme permits an Article 4 direction restricting permitted development in circumstances including a conservation-area designation. That was the proper route for the authority to require a fresh application for planning permission. Refusal of such an application could give rise to compensation.
5. Although an enforcement appeal could determine factual and legal issues, judicial review was the more convenient and effective remedy where the dispute principally required authoritative resolution of a legal question: see R v Devon County Council ex p Baker [1995] 1 All ER 73. The court nevertheless stated that, had alternative remedy been separately determined at the outset, it would have inclined to require the claimants to pursue the appeal.
6. The Withdrawal Notices were quashed and the principal declaration was granted. The second declaration was not pursued. Costs were awarded, subject to detailed assessment. Leave to appeal was refused.

First-instance judicial review proceedings. The judgment states that permission to apply for judicial review had been granted by Forbes J on the papers on 2 November 2004. The court quashed the Withdrawal Notices and granted the principal declaration.