R (on the application of Thornton Hall Hotel Ltd) v Thornton Holdings Ltd
| Jurisdiction | England & Wales |
| Judge | Sir Terence Etherton,Lord Justice Lindblom,Lord Justice Irwin |
| Judgment Date | 30 April 2019 |
| Neutral Citation | [2019] EWCA Civ 737 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2018/0793 |
| Date | 30 April 2019 |
[2019] EWCA Civ 737
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
PLANNING COURT
MR JUSTICE KERR
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of the Rolls
Lord Justice Lindblom
and
Lord Justice Irwin
Case No: C1/2018/0793
Mr Christopher Lockhart-Mummery Q.C. (instructed by Gateley LLP) for the Appellant
Mr James Strachan Q.C. (instructed by Weightmans LLP) for the First Respondent
Mr Alan Evans (instructed by Wirral Metropolitan Borough Council) for the Second Respondent
Hearing date: 5 March 2019
Judgment Approved by the court for handing down
(subject to editorial corrections)
Sir Terence Etherton M.R., Lord Justice Lindblom and
Introduction
Was the court below wrong when it exercised its discretion to extend time for a challenge to be brought by a claim for judicial review against a planning permission granted more than five and a half years before the claim was issued? That is the question at the heart of this appeal.
The appellant, Thornton Holdings Ltd., appeals against the order of Kerr J., dated 23 March 2018, quashing the planning permission granted by the second respondent, Wirral Metropolitan Borough Council, on 20 December 2011 for the erection of three marquees on land within the Thornton Manor Estate, at Thornton Hough in the Wirral. Thornton Holdings owns Thornton Manor, a grade II* listed building, which has within its grounds an historic garden listed at grade II* in Historic England's Register of Parks and Gardens. The site is in the North West Green Belt and an Area of Special Landscape Value. Thornton Hall Hotel, which is owned and operated by the first respondent, Thornton Hall Hotel Ltd., is about 2 km to the south-east. Thornton Holdings and Thornton Hall Hotel are commercial rivals, competing for the business of hosting weddings and other events.
The planning permission of 20 December 2011 was granted and sent to Thornton Holdings without any conditions attached to it. Having discovered this only in July 2017, and believing the absence of conditions to have been a mistake and unlawful – because the council had in September 2010 decided to grant planning permission subject to conditions, including one limiting the permission to a period of five years – Thornton Hall Hotel issued a claim for judicial review in August 2017. The judge accepted that the necessary extension of time for bringing the claim should be granted, that the planning permission was unlawful, and that it ought to be quashed. Permission to appeal was granted by Lindblom L.J. on 31 July 2018.
The issues in the appeal
The appeal raises two main issues: first, in view of the delay of more than five and a half years, whether the judge erred in extending time for the claim to be brought, under CPR r.3.1(2)(a); and second, having regard to the substance of the claim, whether he was wrong not to exercise his discretion to refuse relief under section 31(6) of the Senior Courts Act 1981.
The planning permission
The judge described the site's relevant planning history (in paragraphs 7 to 22 of his judgment). It is not necessary to repeat his account of various withdrawn and unsuccessful applications for planning permission for the erection or retention of marquees and the council's efforts to enforce planning control, including the enforcement notice it issued on 14 April 2010 against the unauthorised use of the land for “the siting of a marquee alongside the Boating Lake within the curtilage of Thornton Manor …”.
On 9 April 2010, when one marquee was still on the site, Thornton Holdings made an application for planning permission for the “[proposed] erection of three marquees within the Thornton Manor Estate at The Dell, The Walled Garden and at the Lake to be used for private functions and conferences” (application ref. APP/10/00445). They told the council that profits from the commercial use of the marquees would be used to restore the registered historic garden and maintain it over a period of 25 years – in planning parlance, a case of “enabling development”. In a letter to the council dated 13 May 2010 from its planning consultant, Mr Gilbert of The Planning Consultancy, Thornton Hall Hotel objected. The application went before the council's Planning Committee on 21 July 2010, with a recommendation for refusal from the planning officer. The committee deferred its consideration for a site visit and further information on the financial argument underpinning the “enabling development” case. The application came back before the committee on 7 September 2010. The planning officer now recommended approval. In her report to committee she advised that “[the] limiting of the consent to a period of five years would enable realistic monitoring and review of the financial situation and prevent the establishment of inappropriate structures in the green belt for longer than necessary”. English Heritage were no longer opposed to the application. Following the officer's recommendation, the committee decided that, if no direction to the contrary was made by the Secretary of State, planning permission should be granted, subject to 10 conditions and the completion of an agreement under section 106 of the Town and Country Planning Act 1990 for the works to the historic landscape.
The first of the 10 conditions, as recommended by the planning officer, was this:
“This permission shall be for a limited period of five years only expiring five years from the date of issue of the decision notice.”
The reason for its imposition was:
“To enable the financial situation to be reviewed and minimise the impact on the green belt from the erection of the structures”.
Other conditions required various matters to be approved before the marquees were brought into use. There was no condition requiring them to be removed at the end of the five-year period.
The committee's resolution that “the application be approved” was recorded in the minutes of the meeting, which also set out the 10 conditions in full, though not with the reasons for them.
On 23 September 2010 the Secretary of State decided not to call the application in. After that, progress in the negotiation of the section 106 agreement was slow. In May 2011 the council prepared a draft decision notice, which was going to be appended to the agreement. This document contained the 10 conditions the committee had resolved should be imposed. A further draft was produced in September 2011, also with the conditions. Both documents were published on the council's electronic planning register on its website. Eventually, on 11 November 2011, the section 106 agreement was executed. Under clause 4.1, it was conditional on “the grant of the Planning Permission”, defined in clause 1 as “the full planning permission subject to conditions to be granted by the Council pursuant to the Application a draft of which is set out in Schedule 2”. That schedule comprised an undated draft of the decision notice, which included the 10 conditions and was signed by Mr Adderley, the council's Interim Director of Corporate Services. Schedule 3 contained Thornton Holdings' covenants, including a covenant to agree with the council and comply with “a detailed five year Works Programme …”. Schedule 5 included a programme of restoration work to the historic garden, extending to 2032.
No decision notice was issued by the council on 11 November 2011, or for some six weeks after that. The decision notice of 20 December 2011, which constitutes the formal grant of planning permission for the development, was on a standard form document. The “Council Decision Summary” stated that, in reaching the decision, the council had considered the proposal's “potential to support the long term viability of the estate and particularly the registered historic park and gardens (now identified declining and as being at risk)” and “the generation of an income stream” that “would enable the restoration of the registered gardens which [the council] considers constitutes the very special circumstances necessary to overcome the presumption against inappropriate development”. It then stated:
“Wirral Borough Council hereby grants Planning Permission for the development specified in the application and accompanying plans submitted by you subject to the following conditions …”.
However, no conditions were set out. Under the heading “Rights of Appeal” the decision notice stated:
“If you disagree with any of the conditions in this decision, other than those which have been imposed to comply with Regulations made under the Town and Country Planning Act 1990, you are entitled to appeal to the Secretary of State. …”.
In the “Notes to Applicant”, under the heading “Compliance with Conditions”, it stated:
“… The Council expects strict compliance with all conditions. Failure to do so may result in the service of a Breach of Condition Notice and prosecution by the Council.”
The decision notice was signed by Mr Adderley, who was now the Acting Director of the council's Department of Regeneration, Housing and Planning.
On the same day, the planning permission was sent by post to Thornton Holdings' agent, Mr Landor, together with the documents and drawings submitted with the application for planning permission, all stamped “Approved”. Mr Landor received it on 22 December 2011. It was not sent to Mr Gilbert. It was evidently placed on the planning register on the council's website, but the draft planning permissions of May and September 2011 were still there as well. Mr Landor says (in paragraph 6 of his witness statement dated 11 September 2017) that when he received the planning permission he “noted...
To continue reading
Request your trial
-
The Secretary of State for Work and Pensions v Paul Hughes and Others
...a case management decision. On appeal the Court should be slow to interfere: see eg R (Thornton) Hall Hotel Ltd) v Wirrall MBC [ 2019 EWCA Civ 737 paragraph [21(8)]. For the Court to intervene there has to be misdirection in law, a failure to have regard to a relevant consideration, or the......
-
R (on the application of Christopher Packham) v Secretary of State for Transport
...of this court in R. (on the application of Thornton Hall Hotel Ltd.) v Thornton Holdings Ltd. and Wirral Metropolitan Borough Council [2019] EWCA Civ 737, at paragraph 21). In the circumstances of this case, we think that requirement was 45 It seems to us that this case is materially diffe......
-
The Joint Council for the Welfare of Immigrants v The President of the Upper Tribunal (Immigration and Asylum Chamber)
...forward by the parties or “craft a different remedy of its own” ( R (Thornton Hall Hotel Ltd) v Wirral Metropolitan Borough Council [2019] EWCA Civ 737 [2019] PTSR 1794 at paragraph 47). The judicial review grounds, as is good practice, included: “Such further or other relief as the Court......
-
The Joint Council for the Welfare of Immigrants v The President of the Upper Tribunal (Immigration and Asylum Chamber)
...forward by the parties or “craft a different remedy of its own” ( R (Thornton Hall Hotel Ltd) v Wirral Metropolitan Borough Council [2019] EWCA Civ 737 [2019] PTSR 1794 at paragraph 47). The judicial review grounds, as is good practice, included: “Such further or other relief as the Court......