Coventry Gliding Club Ltd, R (On the Application Of) v Harborough District Council

Where permitted development is subject to prior approval, failure to notify the applicant of the authority’s decision within the prescribed period may make the right to develop unconditional, even if the authority made its decision in time. A quashing order may be refused where it would provide no practical benefit and a declaration of unlawfulness is sufficient. The statutory scheme is not incompatible with Convention rights merely because administrative default may produce that consequence. The court cannot grant an injunction against development carried out pursuant to the resulting planning permission without a legal basis.

The claimant challenged Harborough District Council’s decision granting prior approval for the conversion of an agricultural building into a dwelling. In the liability judgment, the court found the decision unlawful for failure to give the required notice and failure to consider relevant matters.

At the remedies hearing, it emerged that the Council had made its decision on 28 February 2019 but notified the interested party on 1 March 2019. The issues were whether the decision should be quashed, whether the notification provision was incompatible with Convention rights, whether an injunction should restrain development, and whether the earlier costs order should be varied.

1. Effect of late notification. Under article 7 of the Town and Country Planning (General Permitted Development) (England) Order 2015 and paragraph W(11) of Part 3 of Schedule 2, the relevant period expired on 28 February 2019. Although the Council made its decision within that period, notification was late. The consequence was that the interested party’s right to develop under paragraph Q became unconditional and remained available for the permitted period.
2. Remedy. A quashing order was refused. It would have served no practical purpose because the permission had become unconditional and the Council could take no new decision capable of altering that position. A declaration that the decision was unlawful was sufficient.
3. Convention compatibility. Following the reasoning of R(Nunn) v First Secretary of State [2005] Env LR 32, the statutory consequence of an authority’s failure to act within time did not make the GPDO incompatible with Convention rights. The alleged infringement resulted from the Council’s failure to comply with the notification requirement. Section 3 of the Human Rights Act 1998 did not give the court jurisdiction to rewrite the statutory scheme. The judgment left open the position where a timely decision was later quashed.
4. Injunction. There was no legal basis for an injunction preventing development. The interested party had planning permission under the GPDO, and the Council’s error did not justify restraining its exercise.
5. Costs and damages. The Council’s application to vary the costs order made after the liability judgment was refused. The court declined to express a view on the availability or value of a proposed damages claim before the proposed amended pleading and the Council’s response had been filed.

The judgment itself was a remedies judgment following the court’s earlier liability judgment in the same proceedings, [2019] EWHC 3059 (Admin). The court had found the Council’s decision unlawful and subsequently determined the appropriate remedies.