QM Developments (UK) Ltd v Warrington Borough Council

Judicial review is a remedy of last resort. Where Parliament provides an adequate statutory appeal capable of determining the underlying legal and factual issues, the court will ordinarily decline to entertain judicial review. Exceptional circumstances are required to justify bypassing that remedy.

An informative attached to a certificate of lawfulness has no legal effect. It cannot operate as a planning condition or determine the parties’ rights. Its inclusion may therefore make a challenge practically arid, particularly where the substantive dispute can be resolved through the statutory appeal or related civil proceedings.

The claimant challenged the inclusion of an informative in a certificate of lawfulness of existing use or development issued by Warrington Borough Council. The certificate stated that the development had lawfully implemented planning permission, but the informative stated that a contaminated-land condition had not been fully discharged.

The claimant argued that the informative had no proper legal basis, was irrational, and that the development was lawful either because the condition had been discharged or because the statutory enforcement period had expired. The Council argued that the claimant had adequate alternative remedies, including an appeal under section 195 of the Town and Country Planning Act 1990, and that the informative had no legal effect.

The central issue was whether the Administrative Court should entertain the judicial review despite those alternative remedies.

1. Application dismissed. The court declined to entertain the judicial review because the claimant had adequate alternative remedies.
2. The principle that judicial review is a remedy of last resort was reaffirmed, relying on R (on the application of Willford) v Financial Services Authority [2013] EWCA Civ 677. Only exceptional circumstances justify judicial review where an alternative remedy is available. The court must consider the nature of the dispute and the statutory scheme providing the alternative remedy.
3. Section 191 of the Town and Country Planning Act 1990 provides the statutory mechanism for determining whether an existing use, operation or failure to comply with a planning condition is lawful. Under section 195, an appeal to the Secretary of State is available where the application is refused, refused in part, or not determined within the statutory period.
4. The claimant’s pending appeal against non-determination could provide a full determination on the merits, including the arguments concerning the validity or discharge of condition 6, the four-year rule, and whether a certificate should be issued without the informative. The appeal would be determined by a specialist planning inspector and would remain subject to the court’s supervisory jurisdiction for errors of law.
5. The related civil proceedings could also address whether condition 6 remained to be discharged. The court saw no reason why that litigation could not resolve the relevant planning-law issues, with appropriate directions concerning judicial expertise if necessary.
6. The court therefore found no exceptional circumstances. It did not need to determine whether the inclusion of an informative was justiciable. It nevertheless observed that informatives have no legal effect and are merely expressions of opinion. The claimant’s proposed relief would not realistically affect the civil dispute, making the challenge arid.