In my previous article I considered the requirements necessary to have a valid application for planning permission. In this article I go on to consider the extent to which an LPA has discretion to consider an invalid application.

The Town and Country Planning Act 1990 (‘the 1990 Act’) contains two provisions which concern the extent to which an LPA may consider an application for planning permission.

The first, section 327A is of general application to all the requirements found in the 1990 Act. It states:

  • This section applies to any application in respect of which this Act or any provision made under it imposes a requirement as to –
  • the form or manner in which the application must be made;
  • the form or content of any document or other matter which accompanies the application.
  • The local planning authority must not entertain such an application if it fails to comply with the requirement.

Emphasis added

This section has the effect of removing from the LPA any discretion as to whether it has the jurisdiction to consider, or “entertain” an incomplete – and therefore invalid – application.[1]

The section provision, section 65(5), imposes a more specific restriction. This section concerns the notification of applications for planning permission and imposes requirements which are intended to identify those who have an interest in the land to which the application pertains. Section 65(5) states:

  • A local planning authority shall not entertain an application for planning permission [ or permission in principle] unless any requirements imposed by virtue of this section have been satisfied.

As described in my last article, an application is either valid or it is not, regardless of any administrative step taken by the LPA. Accordingly, if it becomes apparent at any point, including after determination, that an application was in fact invalid, an LPA therefore has no discretion to “entertain” that application and must therefore “unvalidate” such an application and decline to determine it.

In such instance, the LPA must notify the applicant and return the fee, as required by Regulation 3(5) of the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012.

Such a turn of events can put LPAs in a tricky position as these actions, while mandatory, may also be subject to challenge. In Newcastle Upon Tyne City Council v Secretary of State for Communities and Local Government [2009] EWHC (Admin) 3469 the LPA declined to determine an application on the basis of invalidity and the applicant issued an appeal to the Secretary of State under section 78 of the 1990 Act. While the matter before the court related to a specific legislative provision, it was common ground between the parties that, if the LPA fails to determine such an application within the specified time, there is an entitlement to appeal. It was also agreed that there is a right for an applicant to appeal to the Secretary of State if the applicant contends that his application is valid, contrary to the view of the LPA.

The role of the courts

While the legislation removes an LPA’s discretionary powers, the Court retains a residual discretion as to whether to grant relief in cases where the application does not comply with the necessary requirements.

The exercise of the Court’s discretion has been revisited over the years. Prior to the addition of section 327A of the 1990 Act, section 65(5) was interpreted subject to the Court of Appeal’s ruling in Main v Swansea City Council (1985) 49 P. & C.R 26, in which it was held that an application which falls foul of the requirements of section 65 is voidable, but that the Court retains discretion as to whether it should be voided. Relevant to the exercise of this discretion are factors such as the nature of the irregularity, the identity of the person applying for relief, the lapse of time since decision and the effect on other parties and public.

Case law which has been developed since the entry into force of section 327A indicates the discretionary test established by the Court of Appeal in Main continues to be applied, with a variety of outcomes. In R (on the application of Pridmore) v Salisbury District Council and Another [2004] EWHC 2511 the grant of planning permission was quashed, with the judge saying:

“39.  In my judgment the conduct of Mr Docking and/or his agent on his behalf disclose a cavalier disregard for the mandatory requirements in connection with a statutory certificate. It is one thing to fail to give notice to an unidentified owner of part of the land, as in the case of Main, but it is quite another to certify that prior notice of an application has been given, when it was known that no such notice has been given. More than that, as I am satisfied on the evidence, it is yet worse to certify that notice has been given on a stated date (2nd December) when no notice had been given on that day or at all”

The current position with relation to the effect of section 327A of the 1990 Act is that set out by the authors of the Encyclopaedia of Planning Law and Practice, as endorsed by the High Court in R. (O’Brien) v West Lancashire BC [2012] EWHC 2376 (Admin) [40-42]:

“This section ensures that compliance with these requirements is mandatory and that a local planning authority must refuse to entertain such an application that fails to comply. This may well have unintended side effects. It will open up a new route of challenge by third parties to the validity of planning permissions. At the moment the position is governed by Main v City of Swansea, where in relation to ownership certificates the Court of Appeal declined to accept that the validity of a planning permission should hinge on the distinction between serious or minor irregularities and laid down a more discretionary test requiring regard to be had to all of the circumstances, including not only the nature of the irregularity but also such matters as the identity of the person applying for relief, the lapse of time and the effect on other parties and public. Once compliance becomes mandatory, the court might not so readily ignore a failure to comply even in the case of a technical failure. The test in section 327A is absolute. It is not placed at the discretion of the local planning authority to decide whether the application complies or not, the consequence is that the question of whether the local planning authority has authority to entertain the application becomes one purely of law, although the court retains its discretion as to the granting of a remedy.”

 

Conclusion

It is, therefore, clear that an LPA has no discretion to consider an invalid application, and doing so leaves the resultant position open to challenge via judicial review. It is therefore strongly advisable that LPAs take care only to validate those applications which comply with the procedural requirements discussed in the first article in the Solid Foundations series.

[1] Maximus Networks Ltd v SSLG and ors [2018] EWHC 1933 (Admin), 2018 WL 03549472 §24