O'Brien, R (on the application of) v West Lancashire Borough Council

Failure to comply with planning notification or certification requirements does not automatically require a grant of planning permission to be quashed. Under the Town and Country Planning Act 1990 and the applicable development order, the court retains a discretion to grant or refuse relief. The court must assess the circumstances as a whole, including the nature of the failure, the applicant for relief, prejudice to affected owners, delay, effects on other parties and the public, and the relevance of the affected land to the planning decision. There is no express or implied requirement that notice must always precede the planning application. The planning authority is not generally required to investigate ownership independently, beyond satisfying itself that the notification requirements have been met in the circumstances specified by the order.

The claimant, a neighbouring resident, sought judicial review of the defendant local planning authority’s decision to grant outline planning permission for three houses at West Haven, Skelmersdale. The challenge concerned failures to notify the Homes and Communities Agency, alleged ownership of a boundary ditch, and an incorrect date in an ownership certificate. The defendant accepted some non-compliance but argued that it was innocent, caused no prejudice, and did not justify quashing the permission.

Permission was refused on several merits grounds. The remaining notification and certification grounds proceeded to a rolled-up hearing, with delay left open. The central issues were whether notice had to be served before the application was made, what legal consequence followed from non-compliance, and whether the court should exercise its discretion to quash.

1. The claim was dismissed. The court upheld the planning permission. The claimant was ordered to pay £10,000 in costs, representing 50 per cent of a proportionately assessed total of £20,000.
2. Sections 65(5) and 327A of the Town and Country Planning Act 1990 did not impose an express or implied requirement that notice under article 11 of the Town and Country Planning (Development Management Procedure) (England) Order 2010 be served before the planning application was made. The ordinary expectation that notice and certification would accompany the application did not alter that conclusion.
3. Following Main v Swansea City Council [1985] 49 P & CR 26, non-compliance with the notification or certification requirements could constitute a defect sufficient in principle to justify quashing, but did not render the permission a nullity. The court retained a discretion whether to grant relief. The same approach applied under section 327A.
4. The discretion required consideration of the concrete circumstances, including whether the error was deliberate, the identity and position of the person seeking relief, prejudice to an affected owner, effects on other parties and the public, lapse of time, and the significance of the affected land to the planning decision. The observations in R (on the application of Pridmore & Ors) v Salisbury District Council [2004] EWHC 2511 (Admin) did not establish a general rule departing from Main v Swansea City Council.
5. The errors were honest and caused no prejudice to the Council or HCA. The claimant and neighbouring residents had known of the application and had made representations. Private ownership, covenant and boundary issues were not relevant planning considerations. The authority had no general duty to investigate ownership beyond the obligations imposed by the Order.
6. The claim was brought within the three-month period but not as promptly as it could have been. Delay was not decisive alone, but was a relevant factor in the overall exercise of discretion. In the circumstances, quashing would have been disproportionate.