Planning: Court Quashes Flawed Planning Consent 6 Years After Issue

Judicial review ("JR") proceedings to challenge a local planning authority's decision are required to be brought without delay and within 6 weeks of the decision. A recent planning decision of the High Court has allowed JR proceedings to be brought 6 years after a planning consent was granted, due to the special circumstances of the case. We consider the impact this decision has had on the planning status of a property, irrespective of the age of the planning consent, how long the consent remains vulnerable to challenge and whether this could open the flood gates to out of time JR applications.

R (Thornton Hall Hotel Ltd) v. Wirral MBC [2018]

This case involved two competing wedding and function venues: Thornton Manor and Thornton Hall Hotel. On 7th September 2011 Wirral Metropolitan Borough Council

(WMBC) planning committee resolved to grant planning consent for 3 marquees to be erected in the Grade II* Hotel's grounds, which were also Grade II* listed and located in the greenbelt. The Committee resolved that very special circumstances existed to allow the erection of the marquees for a limited period of 5 years, to secure "the "generation of an income stream to enable restoration of the gardens, which were in decline and at risk, and constituted very special circumstances necessary to overcome the presumption against inappropriate development".

The Committee report recommended the application be approved subject to a S106 planning agreement and included 10 recommended conditions, including a 5 year time limit. On 11th November 2011 the S106 agreement was entered into by the Hotel and the draft consent notice with the relevant conditions was annexed to it.

On 20th December 2011 WMBC issued an unconditional consent, omitting to attach the conditions, restricting the time period and the 9 other conditions the Committee decided to impose. It appears that WMBC were unaware of this omission until the five year time period of the consent had expired and the marquees were not removed. Thornton Manor brought JR proceedings on 23rd August 2017, which were not opposed by WMBC.

Despite the fact that it was 6 years out of time, the judges allowed the JR application and ruled on nine grounds in favour of the applicant, including that the error had been made in issuing the flawed consent; that the interested party (the Hotel) was aware of the error, and that the interested party had entered into a S106 planning agreement embodying the omitted...