What do you do when you've been granted planning permission by administrative error?

Wed, 07 Aug 2019

Introduction

In an interesting and rare case, a Revocation Order (‘the Order’) made by Thanet District Council was successfully challenged. The Order had aimed to revoke planning permission for the erection of a detached 2 storey 3 bedroom dwelling. The objector was the owner and occupier of the Order Property. 

If you have the benefit of a planning permission and the Council wishes to revoke its decision, it cannot simply remake a decision. It is established case law that local planning authorities cannot withdraw and re- issue decision notices to correct errors following an administrative mistake. Section 97 of the Town and Country Planning Act 1990 (“the TCPA”) allows councils to revoke or modify a planning consent “to such extent as they consider expedient” with regard to the development plan and any other material considerations. The Act does not define the test of expediency. The power to revoke or modify a planning permission conferred by s.97 is subject to liability to pay compensation.

The Facts

In this case, the grant of planning permission was issued in error following the decision of the Council’s Planning Committee to refuse the application contrary to the recommendation of its Planning Officer for the single reason that the proposed development “would represent the cramped and a congested form of development and the loss of an important area of open space that provides relief within the streetscape” contrary to a particular policy. A decision notice granting planning permission rather than notifying refusal was incorrectly issued the following day because of an administrative error. The Council issued a new decision notice refusing the scheme upon discovering the error the next day. But it was too late. The initial decision notice was legally valid and the Council was forced to turn to S.97.

The objecting beneficiary of the planning permission, an individual, contended there was no valid reason to revoke his planning permission. That it was neither proportionate nor necessary to do so. The Council argued that the Order was necessary first to maintain the integrity of the decision making function of the Council, having regard to its Constitution. Second, the Council had given clear and cogent reasons for departing from the recommendation of its Planning Officer. Third, the Order should stand for the same reason that the planning permission had been refused, namely that the scheme would harm the character and appearance of the area [DL 16].

The Decision

The Inspector held that the test must ultimately “relate to whether there are good planning reasons to confirm the Order or not.” [DL 24]. Neither the administrative error nor the departure from the Officer’s recommendation were determinative factors in deciding whether the permission should be revoked [DL 29]. What was important was whether the scheme would harm the character and appearance of the area and whether it would comply or not with the development plan [DL 30]. The Inspector found that, in his judgment, the development would be satisfactorily assimilated onto the site without appearing cramped or shoe-horned on to the plot [DL 30]. The proposal met the requirements of the Local Plan as well as the Framework and should be confirmed without delay [DL 33].

The Inspector recommended to the Secretary of State that the Order should not be confirmed.

Lessons

Applications to revoke are usually unchallenged. In theory, s.97 offers an economical way to dispose of a consent which has been granted in error. This case shows, however, that the s.97 route is not safe from challenge; and a beneficiary of the permission, the objector, is able to successfully argue that there is no need for the matter to be reconsidered. The planning merits are just as relevant to revocations as they are to refusals. It could be argued that this was a S.78 planning appeal by other means. It follows that local planning authorities who make an order under s.97 should guard against the same arguments that would militate against a refusal of planning permission under s.78.

Hashi Mohamed acted on behalf of the Objector in this decision.

APP/PCU/REV/Z2260/3208522 Land adjacent to Poets Corner, Margate, Kent

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