Morris Homes (North) Limited, R (on the application of) v Bolton Council & Anor

Whether a planning application is “made” depends on the statutory or regulatory context. For the transitional biodiversity gain planning condition regime, an application is made when it is received by the local planning authority, even if it is incomplete or invalid at that time. The application may subsequently be validated by supplying the required documents, and its validity is treated as running from the date of receipt. The approach in Geall, which concerned a provision requiring an application capable of determination where no determination had occurred, did not govern the different wording of the transitional provision. A challenge based on the contrary construction therefore lacked a realistic prospect of success.

Bolton Council granted Westchurch Homes Limited planning permission for 133 affordable dwellings on 3 October 2024. Morris Homes sought permission to bring a judicial review claim, arguing that Bolton unlawfully failed to impose the biodiversity gain planning condition required by section 98 and Schedule 14 of the Environment Act 2021.

The relevant transitional provision disapplied that obligation where the planning application was made before 12 February 2024. Westchurch’s application was received and the fee paid on 11 January 2024, but it was incomplete and was not validated until 18 April 2024. The issue was whether it had been made before the statutory cut-off.

1. Permission refused. The claimant’s proposed judicial review had no realistic prospect of success.
2. The question when an application is “made” is context-dependent and turns on the construction of the particular statutory or regulatory provision. The Court of Appeal authorities did not establish one universal rule.
3. Regulation 3 of the Environment Act 2021 (Commencement No.8 and Transitional Provisions) Regulations 2024 applies where planning permission has been granted on the application. Its wording was materially equivalent, for this purpose, to section 3(3) of the Town and Country Planning (Compensation) Act 1985, considered in Camden London Borough Council v ADC Estates Limited. That authority was binding and established that an application is made when received by the intended planning authority.
4. The application therefore remained the same application despite its initial defects. An application, however flawed, could be saved by supplying correct documentation. Once validated, it was treated as valid from the date it was made, namely 11 January 2024.
5. Geall v Secretary of State for the Environment concerned a different provision, regulation 10(5) of the Town and Country Planning (Fees for Applications and Deemed Applications) Regulations 1989, operating where no determination had occurred. It provided no guidance on the construction of regulation 3 and did not assist the claimant.
6. The oral renewal was refused. The judge agreed with the reasons for refusal previously given by His Honour Judge Cawson KC.

Permission was refused on the papers by His Honour Judge Cawson KC on 27 January 2025. The claimant’s oral renewal was refused by the High Court (Planning Court).