Tata Steel UK Ltd v Newport City Council

An unlawful planning permission should normally be quashed so that the decision-making authority can reconsider and regularise the position lawfully. This reflects the public character of planning control. The court should not treat the remedial question merely as a private balance between the prejudice suffered by an objector and that suffered by persons who have relied on the permission.

Reliance, resulting uncertainty and the limited duration of a permission do not, without more, justify withholding a quashing order. Section 31(6) of the Senior Courts Act 1981 applies only where there has been undue delay in seeking judicial review.

Newport City Council granted temporary planning permission for a gypsy family to occupy land beside the appellant's industrial works. The family moved onto the site shortly afterwards. The appellant, referred to in the reasons as Corus UK Ltd, challenged the permission by judicial review.

Wyn Williams J found five errors of law affecting the grant. He nevertheless refused to quash the permission. He relied on his general remedial discretion and undue delay under section 31(6) of the Senior Courts Act 1981, principally because of the perceived prejudice and uncertainty that quashing would cause the family.

The appellant appealed only against the refusal of a quashing order. The central issue was whether the judge had exercised either discretion on a proper basis.

1. Appeal allowed and planning permission quashed. Carnwath LJ held that the judge had erred in principle when exercising the general remedial discretion. Elias and Pitchford LJJ agreed.

2. A planning permission is a public act. Where it has been found unlawful, particularly for several errors going to the merits, the normal result is that it should be quashed and the matter regularised through lawful reconsideration. That principle was consistent with R Edwards v Environment Agency [2008] UKHL 22. The remedial question could not properly be reduced to a private-law balance between the appellant and the family occupying the site.

   Quashing would give the appellant the material benefit of requiring the council to reconsider how the position should be regularised on a proper basis. Conversely, there was no evidence that the family regarded itself as prejudiced by the proceedings. The uncertainty ordinarily created when people have acted on an unlawful permission is not, by itself, a reason to refuse a quashing order. The family's occupation of council land, the short duration of the permission and the possibility of further disputes did not displace the public interest in regularising an unlawful planning decision.

3. Elias LJ further held that section 31(6) of the Senior Courts Act 1981 did not justify refusing relief. The statutory discretion arises where there has been undue delay in applying for judicial review. Properly analysed, the appellant had acted promptly and the subsection therefore did not come into play.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously. The court substituted an order quashing the planning permission.
2. High Court: Wyn Williams J held that the planning permission was unlawful for five errors of law but refused a quashing order under the general remedial discretion and section 31(6) of the Senior Courts Act 1981. No citation is stated in the judgment.