Irving v Mid-Sussex District Council

Planning judicial review claims must be brought promptly. The six-week period under CPR 54.5 reflects the need for certainty in planning decisions, and an extension requires very good reasons. The court will weigh delay, the seriousness of the unlawfulness, prejudice, good administration and the public interest in legality.

A public authority has discretion, but no duty, to seek the quashing or revocation of its own planning permission after discovering unlawfulness. It must properly consider whether to exercise that discretion. The court interferes only if the decision is Wednesbury unreasonable.

The claimant challenged a planning permission granted by the defendant council in December 2013 for a dwelling on council-owned land. A renewed application for judicial review was brought substantially out of time. The claimant also challenged the council’s failure to consent to quashing the permission or revoke it after an earlier decision had identified materially defective planning advice in related proceedings.

Two further challenges concerning marketing, implementation and disclosure were withdrawn. The issues were whether time should be extended and whether the council’s March 2017 decision not to consent to quashing or revoke the permission was unlawful.

1. Ground 1 dismissed. The planning challenge was brought about three years after the decision and far outside the six-week period required by CPR 54.5. An extension under CPR 3.1(2)(a) requires very good reasons. Promptness has particular force in planning cases because the statutory time limit seeks to reduce delay and provide certainty in public decision-making.
2. The claimant’s reliance on the council’s earlier intention to sell the land did not justify the delay. That statement was not a promise and created no legitimate expectation that the council would not later develop the site. The exceptional delay allowed in R (on the application of Gardner) v Harrogate Borough Council [2008] EWHC 2942 Admin and R v Bassetlaw District Council ex p Oxley [1998] PLCR 283 was fact-specific and did not govern this case.
3. The public interest in the rule of law did not displace time limits and the requirements of good administration. The court rejected the suggestion that prejudice to good administration was merely empty rhetoric. Financial and administrative prejudice, together with the passage of time and the later reconsideration, were relevant considerations.
4. Ground 2 dismissed. A council may apply on its own motion to quash a planning permission and may revoke permission under section 97 of the Town and Country Planning Act 1990. It has no obligation to do either. It must, however, give proper consideration to whether its discretion should be exercised, taking account of delay, the reasons for it, the seriousness of the wrongdoing, third-party prejudice and good administration.
5. The legal test was whether the council’s decision was Wednesbury unreasonable. The March 2017 committee decision was based on a lengthy report containing the history, corrected planning advice, prejudice and available options. It was not shown to have been infected by irrelevant considerations, applying the approach in R (on the application of Carlton-Conway) v Harrow LBC [2002] EWCA Civ 927.
6. The claim was dismissed. Permission to appeal was refused on ground 1; the court allowed twenty-one days from production of the transcript for any application concerning ground 2. Costs submissions were to be made in writing.

The judgment records earlier related judicial review proceedings in which the High Court quashed a materially identical planning permission: [2016] EWHC 1529 Admin. This was a first-instance judicial review decision. The court dismissed the present claim and refused permission to appeal on ground 1.