Bishop, R (on the application of) v Westminster Council & Ors

Failure to comply with mandatory planning-application notification and certification requirements does not make quashing automatic, but the court’s discretion is strongly weighted towards relief where the permission is unimplemented, no reliance expenditure is shown, and the claimant owns part of the development site. A materially false or misleading ownership certificate, issued recklessly, is a powerful reason to quash. The court should not speculate that the planning outcome would have been unchanged if representations had been made. A site notice may satisfy the statutory publicity requirement, while a claim based on legitimate expectation requires an express promise or a practice that is clear, unequivocal and unconditional, together with conspicuous unfairness in departing from it.

The claimant challenged a planning permission granted to develop a self-contained flat above his penthouse. The application incorrectly identified the applicant, the site and the ownership position, and included part of the claimant’s long leasehold demise. The local planning authority accepted that the claimant had not been notified as an owner, but resisted a separate challenge based on failure to notify him individually as an adjoining owner or occupier. The court also considered delay, pre-action protocol compliance, the discretion to grant relief, legitimate expectation and procedural fairness.

1. Ground 1 succeeded. The application form and Certificate A were materially erroneous. The claimant owned part of the land to which the application related and should have received notice under article 13(1) of the Town and Country Planning (Development Management Procedure) (England) Order 2015. There was also probably a breach of article 7(1)(b), although that point was not separately argued (paras [20]–[22]).
2. The mandatory wording of sections 65(5) and 327A(2) of the Town and Country Planning Act 1990 did not remove the court’s discretion whether to quash. The statutory scheme meant that the scales did not start equally balanced. Relevant considerations included whether the permission had been implemented, reliance expenditure, the claimant’s ownership of part of the site, delay and the public interest in compliance with mandatory requirements (paras [23]–[26]).
3. It was not highly likely that the outcome would have been substantially the same if the claimant had been notified. The court should not generally anticipate the result of a planning process in which relevant representations were not considered. Notification might have led to amended plans and a materially different permission. Section 31(2A) of the Senior Courts Act 1981 therefore did not apply (para [28]).
4. The evidence established recklessness, even without a finding of dishonesty. Acting on the interested party’s behalf, the agent issued a certificate purporting to comply with the statutory requirements while making materially false and misleading statements about the applicant, site and ownership. This amounted to a cavalier disregard for mandatory certification requirements and strongly supported quashing (para [29]). The claimant’s omissions and conduct did not excuse the defective certificate or failure to notify him (para [30]).
5. Ground 2 failed. The site notice satisfied the alternative publicity requirement in article 15(5)(a). No sufficiently clear, unequivocal and unconditional practice or promise established a legitimate expectation of individual notification. Nor was there conspicuous unfairness or a pleaded and sustainable Wednesbury challenge to the use of a site notice in the circumstances (paras [33]–[39]).
6. The second planning permission was quashed. The claim was rejected on Ground 2. Costs were left for agreement or written submissions (paras [40]–[42]).