Thornton Hall Hotel Ltd, R (On the Application Of) v Wirral Metropolitan Borough Council

A planning permission takes legal effect when the decision notice is issued, even if the notice contains a legal flaw. It is not ordinarily a complete nullity that may be ignored. However, where the notice fails to reproduce conditions imposed by the planning committee, the permission may be quashed on a proper judicial review challenge.

In deciding whether to extend time and grant relief, the court must consider the integrity of the planning process, the public interest, prejudice, delay, and the conduct of the parties. Commercial reliance on an erroneous unconditional permission will not necessarily outweigh the public interest where the beneficiary knew of the error and remained silent.

The claimant, which operated a competing hotel, challenged a planning permission granted to the interested party for three marquees at Thornton Manor. The local planning authority’s committee had resolved to grant permission subject to ten conditions, including a five-year limit, but the issued decision notice omitted all conditions.

The claim was brought more than five years after the notice was issued. The local planning authority accepted that an error had occurred and supported the claim. The interested party opposed an extension of time and argued that the permission was effective and should remain unlimited. The court considered whether time should be extended, whether the claim was arguable, and whether the permission should be quashed.

1. Extension of time and permission. The court extended time and granted permission to proceed. Although the delay was extreme, the interested party knew of the discrepancy from shortly after the notice was issued and did not disclose it. The adverse effect on the planning process arose principally when the five-year period expired, rather than when the permission was issued.
2. Legal effect of the notice. Planning permission was granted by the issue of the written decision notice. The omission of the conditions did not make the permission wholly void from the outset. A legally flawed decision may have legal effect unless and until it is quashed, and may acquire practical legitimacy where no timely challenge is brought or relief is refused.
3. Availability of relief. The permission was nevertheless flawed because the officer’s delegated authority to issue the notice did not include authority to undo the planning committee’s decision to impose conditions. The error was not cured by the fact that the authority intended to grant permission of some kind. Nor did any estoppel or ostensible authority principle apply.
4. Exercise of discretion. The court quashed the permission. Permanent and unconditional permission would not have been granted or regarded as being in the public interest. The marquees were inappropriate development in the Green Belt and had been accepted only because of the financial circumstances, the condition of the listed gardens, and the limited duration allowing later review.
5. The public interest in correct implementation of planning decisions outweighed the interested party’s commercial interests and the potential hardship to future customers. The interested party had accepted bookings at its own risk after knowing of the error. Its position was further weakened by the section 106 agreement, which embodied the omitted conditions, including the time limit.

The claim succeeded. The planning permission in the decision notice dated 20 December 2011 was quashed.

Not stated in the judgment.