Carroll, R (on the application of) v Luken Beck Partnership Ltd & Anor

A planning permission granted contrary to the committee’s resolution may be quashed on judicial review where the officer acted without proper authority. A resolution granting permission subject to the applicant entering into a section 106 agreement ordinarily requires that agreement to be completed before permission is issued. The court may grant relief even though the permission remains effective until quashed, particularly where leaving it in force would place the planning authority in a position of weakness and expose it to potential compensation claims. A person affected by the claim may be permitted to make representations under CPR 54.17 even where it is unnecessary to decide whether that person remains an interested party under CPR 54.1(2)(f).

The claimant, the leader of South Somerset District Council, sought judicial review of a planning permission issued for a substantial residential development. The council’s Regulation Committee had resolved to grant permission subject to, among other matters, the applicant entering into a section 106 agreement covering phasing, highway works, affordable housing, education contributions, and open-space and landscape management.

Following the Secretary of State’s decision not to call in the application, an officer mistakenly issued an unconditional planning permission without the required agreement. The land was later sold by Hopkins Developments Ltd to another developer. The issues included whether Hopkins could participate in the proceedings, whether the officer had power to issue the permission, whether the resolution required the agreement to precede the permission, and whether relief should be refused for prejudice.

1. The claim succeeded. The planning permission was quashed and the matter was directed to be dealt with in accordance with the committee’s resolution, including completion of the section 106 agreement before any permission was granted.
2. The committee’s resolution was clear. The words requiring permission to be granted subject to the applicant entering into a section 106 agreement meant that the agreement had to be in place before the permission was issued. The minutes confirmed that the obligations were material benefits relied upon in approving the development.
3. Although planning permission generally runs with the land and may ordinarily be relied upon without investigating the decision-making materials, the court may quash a decision made without proper authority. The officer’s mistake meant that the permission did not reflect the committee’s lawful decision.
4. The council was entitled to seek quashing rather than negotiate from the weaker position created by the mistaken grant. The possibility that the permission could otherwise be relied upon, or later revoked with potential compensation consequences, justified the approach. The interested parties suffered no legally relevant prejudice because the permission was unlawful and their prospective financial benefit would have been a windfall.
5. It was unnecessary to decide whether Hopkins remained an interested party under CPR 54.1(2)(f). Hopkins was plainly affected and was properly permitted to make representations under CPR 54.17. The proposed challenge to the committee’s delegation to the officer was abandoned and was regarded as an exceptionally weak point.
6. Hopkins was ordered to pay 85 per cent of the claimant’s costs, subject to detailed assessment if not agreed. Leave to appeal was refused.