R Thornton Hall Hotel Ltd v Wirral Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kerr |
| Judgment Date | 23 March 2018 |
| Neutral Citation | [2018] EWHC 560 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3887/2017 |
| Date | 23 March 2018 |
[2018] EWHC 560 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING IN MANCHESTER
Judgment handed down at:
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Kerr
Case No: CO/3887/2017
and
Mr Anthony Crean QC (instructed by Weightmans LLP) for the Claimant
Mr Alan Evans (instructed by Wirral Metropolitan Borough Council) for the Defendant
Mr Christopher Lockhart-Mummery QC (instructed by Gateley plc) for the Interested Party
Hearing date: 31st January 2018
Judgment Approved
Introduction
This is a rolled up hearing ordered by His Honour Judge Davies on 4 October 2017. He directed a combined oral hearing of the permission application and, if permission is granted, of the substantive judicial review. The challenge is to a decision taken by the defendant as long ago as December 2011 to grant planning permission to the interested party for the erection of three marquees at sites within the Thornton Manor Estate, at Thornton Hough in the Wirral.
The claimant owns and operates the nearby Thornton Hall Hotel. The claimant and the interested party are competitors for the business of hosting weddings and other functions. Thornton Manor, owned and operated by the interested party, is a Grade II* listed building in the Green Belt with historic gardens in the grounds which are, separately, also Grade II* listed. The defendant is the local planning authority (the LPA).
In December 2011, the LPA granted unconditional planning permission for the erection of the three marquees within the grounds of Thornton Manor, without limit of time. The applicant for planning permission was the interested party. The claimant and the LPA say that this was a mistake and that the planning permission should have been subject to a condition decided upon by the LPA, but omitted in error from the document granting planning permission.
The error was that the permission (issued on 20 December 2011) should have been made subject to a time limit of five years, such that the marquees would have to be taken down not later than 19 December 2016. The decision made in committee was to impose such a five year time limit, but the document formally granting the permission omitted that time limit and omitted some 9 other conditions which the committee decided to impose.
The LPA accepts and asserts that it made that error and, therefore, does not contest the claim, though it is brought long out of time. The interested party submits that the unconditional planning permission should stand and that the presence of the three marquees at Thornton Manor is therefore lawful and will remain so in future, without any time limit, by virtue of the unconditional planning permission.
The issues are therefore, these. The first is whether an extension of time should be granted. An extension of several years is needed if the claim is to proceed. The second issue is whether, if time is extended, the merits of the claim are properly arguable, such that permission to proceed with the claim should be granted. The third issue, if it arises, is whether the claim should be allowed and appropriate relief granted.
The Facts
In 2006, the interested party erected marquees without planning permission in the grounds of Thornton Manor, for the purpose of holding functions. The LPA issued an enforcement notice in 2007 requiring use of the marquees to cease. An appeal against the enforcement notice was dismissed, but enforcement action was not proceeded with. Outstanding planning applications were refused and the LPA awaited a further planning application in respect of use of all three marquees.
That application was made in April 2010. It came before the planning committee of the LPA on 7 September 2010. A detailed report was available to the planning committee. It set out the planning history, representations and a summary of objections received. In the report it was noted that the three marquees constituted “inappropriate development within the Green Belt”, such that “very special circumstances” would have to be shown, that would “outweigh any harm caused” if it were to be granted.
The report recommended that the application should be approved, subject to a section 106 agreement and referral to the Government Office for the North West, because the “generation of an income stream” to enable restoration of the gardens, which were in decline and at risk, constituted the “very special circumstances necessary to overcome the presumption against inappropriate development”.
However, the report also included 10 recommended conditions. I need only mention the first in full: that the permission “shall be for a limited period of five years from the date of issue of the decision notice”. The other nine recommended conditions related to noise control measures, signage, parking, lighting and a prohibition on the use of fireworks from January to July.
On 7 September 2010, the planning committee met to consider the application. An agent of the claimant attended. The claimant was among the objectors. As the minutes show, the committee resolved to accept the recommendations and to grant permission subject to the conditions recommended, including the time limit of five years from the date of issue of the permission notice (the five year time limit). The reason for the five year time limit was: “to enable the financial situation to be reviewed and minimise the impact on the green belt from the erection of the structures”.
According to a later report to the planning committee in July 2017 reporting on the error the LPA had made (referred to at the hearing, and herein, as the “ mea culpa” report), a draft decision notice was prepared in May 2011 to be appended to the proposed section 106 agreement (paragraph 2.5 of the mea culpa report). It is likely that it included the relevant conditions intended to be attached to the planning permission. In September 2011, a further draft notice was prepared and published on the LPA's website ( ibid., paragraph 2.6).
On 11 November 2011, the agreement made under section 106 of the Town and Country Planning Act 1990 (the 1990 Act) was concluded. The parties included the LPA and the interested party. The “Planning Permission” was defined as “the full planning permission subject to conditions to be granted … pursuant to an Application a draft of which is set out in Schedule 2”. Schedule 2 was a draft notice of grant of planning permission, which included the 10 conditions (and reasons for them) starting with the five year time limit.
The agreement was, in the usual way, conditional on the grant of “the Planning Permission” (clause 4). By clause 6, the LPA covenanted with the interested party “as set out in Schedule 4”. Schedule 4 included provision that if the agreed works programme is completed “prior to the end of the five year term of the Planning Permission”, the obligations in the agreement would cease. Clause 7.7 provided that the agreement would cease to have effect “if the Planning Permission shall be quashed, revoked or otherwise withdrawn…”
On 20 December 2011, the LPA issued its notice of grant of planning permission. The claimant and the LPA referred to this document as “the error permission” because it omitted any conditions. The operative words were these:
“[The LPA] 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 then set out in the document (the decision notice). It went on to deal with rights of appeal. It was signed by the LPA's then acting director of the department of regeneration, housing and planning.
In that unusual form, the decision notice was sent to an agent of the interested party, a Mr Landor, and was received at his office on 22 December 2011. He noticed that it did not include any mention of planning conditions. He checked the LPA's publicly available website to see if the decision notice was on the public record, and found that it was. The claimant's agent, Mr Gilbert, who had attended the meeting in September 2010, did not receive a copy of the decision notice and did not check the LPA's website.
On or about 17 May 2012 (see paragraph 2.8 of the mea culpa report), various versions of a decision notice were found to be on the LPA's website and were taken down from the website and replaced by a new notice dated 11 November 2011, which was the date on which the section 106 agreement had been entered into. There must have been an element of backdating since the new notice was signed by the signatory in the capacity of “director”, a post he had not held in November 2011, when he was acting director.
On 13 March 2013, a different agent of the interested party, a Mr Doughty, applied to discharge the conditions relating to noise, signage, road widening, car parking, lighting and landscaping basing himself on the position as he understood it to be as at 11 November 2011, the date of the section 106 agreement and the date attributed to the notice then on the LPA's website. There was no attempt to remove any five year time limit, which was not mentioned in Mr Doughty's written application. The LPA and the interested party then cooperated in achieving discharge of those non-temporal conditions.
In July 2013 and December 2014, the interested party made further applications, to extend two of the marquees. In April 2016, the interested party made a further planning application, to convert a store and glasshouse into dining facilities. There was correspondence about this, which included...
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