Martin-Sklan, R (on the application of) v London Borough of Barnet

A public authority must act through the body or officer legally authorised to make the relevant decision and must obtain any planning permission required for the development. Where a development has been carried out unlawfully, the court retains a remedial discretion. It may require removal and restoration even where retrospective permission might later be granted. Relevant considerations include whether the authority was alerted to the decision-making and consultation defects, whether it proceeded despite those concerns, and the importance of an objectively reached planning decision uninfluenced by the development’s prior completion.

The claimant challenged the London Borough of Barnet’s creation of a children’s playground at Brookside Open Space. The Council accepted that the playground had been created without a decision by the authorised Council body and without the planning permission required because the development fell outside the relevant permitted development rights.

Permission was granted and the substantive relief was determined by consent. The principal issue was whether the playground should be removed and the open space restored pending determination of a retrospective planning application, or whether its use should merely be restrained. A related Chancery Division proceeding between the same parties was transferred to the Administrative Court and dismissed.

1. Declaration and unlawful action. The Council had acted beyond its powers because the decision to create the playground was not taken by the body within the Council authorised to take it. Planning permission was necessary but had not been obtained.
2. Remedial discretion. The appropriate relief was not determined solely by the possibility that retrospective planning permission might later be granted. The court had to decide whether removal and restoration was the proper response to the unlawful development.
3. Relevant circumstances. The claimant had raised sufficient concerns about the decision-making process, consultation and planning justification to alert the Council to the defects. The Council nevertheless proceeded with the works while those concerns were outstanding. It was also important that any retrospective planning decision should be made, and seen to be made, objectively as to whether the site was suitable for the playground, rather than being influenced by the fact that the development had already occurred.
4. Order. Although removal could result in wasted expenditure if retrospective permission were later granted, removal of the equipment and restoration of the open space to its previous condition was proportionate and appropriate. If permission were granted during the works, further restoration would not be required. Pending removal, the playground was to be fenced and prevented from being used within a reasonable time, with liberty to apply if the Council delayed.
5. The claimant abandoned the damages claim. The related Chancery Division proceedings were dismissed, and the claimant’s costs were to be assessed.

First-instance judicial review proceedings. A related Chancery Division claim between the same parties was transferred to the Administrative Court and dismissed.