Thornton Hall Hotel Ltd, R (On the Application Of) & Anor v Thornton Holdings Ltd

A judicial review challenge to planning permission must be brought promptly. A very lengthy extension will be justified only in the most exceptional circumstances. The court must assess all relevant facts and strike a fair balance between the developer’s interests and the public interest.

A decision notice must faithfully record the planning authority’s actual decision. A permission issued without conditions that were indispensable to the authority’s resolution is unlawful. Where the developer knew of the defect, suffered no material prejudice from the delay, and benefited from an unrestricted permission never authorised by the authority, both an extension of time and a quashing order may be justified.

Thornton Holdings Ltd appealed against Kerr J’s order in [2018] EWHC 560 (Admin) quashing an unconditional planning permission issued by Wirral Metropolitan Borough Council in December 2011. The council’s Planning Committee had resolved to grant only a five-year permission subject to ten conditions, but the decision notice omitted every condition.

Thornton Hall Hotel Ltd, a commercial rival and former objector, discovered the defect in 2017 and sought judicial review more than five and a half years after the permission was issued. The council accepted that the notice had been issued without authority and supported the claim. The appeal concerned whether the judge had erred by extending time under the Civil Procedure Rules and by declining to withhold relief under section 31(6) of the Senior Courts Act 1981.

1. Appeal dismissed. Although an extension exceeding five years was extreme, the court’s power to extend time was a judicial discretion rather than a fixed statutory limitation. Very late planning challenges will rarely be entertained, but all relevant circumstances must be considered. Exceptionally, very special reasons may make an extension necessary in the interests of justice.

2. The circumstances were wholly extraordinary. The decision notice did not faithfully represent the Planning Committee’s lawful resolution. The ten conditions, particularly the five-year restriction, were indispensable to that resolution. The practical effect of their omission emerged only when the intended five-year period expired. The council had also obscured the error by replacing the authentic notice on its register with a false, backdated version.

3. Thornton Holdings knew from the outset that the notice conflicted with the committee’s resolution. It nevertheless remained silent, initially acted as though the conditional permission applied, and relied on the unconditional notice only after the five-year period had passed. It suffered no material hardship or prejudice from the delay. Instead, the delay enabled it to enjoy an unrestricted permission which the council had never authorised.

4. Thornton Hall Hotel’s failure to monitor the planning register did not outweigh the compelling reasons for extending time. The register was initially confusing and later misleading. Once the error and Thornton Holdings’ reliance upon it became clear, the claim was issued with reasonable speed. The interests of good administration and the credibility of the planning system strongly favoured determination of the claim.

5. The unconditional notice was issued without proper authority and was unlawful. The court’s supervisory jurisdiction extends to a failure in the statutory notification of a lawful planning decision, including failure to state conditions which the authority had resolved to impose. It is not confined to unlawfulness in the substantive decision-making process.

6. Under section 31(6)(b) of the Senior Courts Act 1981, the considerations governing relief substantially overlapped with those governing the extension. Quashing restored the position produced by the committee’s lawful decision, prevented continuing unlawfulness, and did not deprive Thornton Holdings of any permission the council had actually resolved to grant. The judge was therefore entitled to extend time and grant a quashing order.

1. Court of Appeal (Civil Division): The appeal in [2019] EWCA Civ 737 was dismissed. The extension of time and quashing order were upheld.
2. Administrative Court, Planning Court: In [2018] EWHC 560 (Admin) , Kerr J extended time, granted permission for judicial review and quashed the planning permission issued on 20 December 2011.