In Thornton Hall Hotel Ltd v Wirral MBC and Thornton Holdings Limited  EWCA Civ 737 the Court of Appeal upheld the decision of Kerr J  EWHC 560 (Admin) to quash a planning permission which Wirral MBC had erroneously issued in December 2011. The Court described the facts of the case as “extremely unusual” and, indeed, “unique”. The permission in question was issued for the erection of 3 marquees in the grounds of Thornton Manor, a grade II* listed building, with a grade II* registered garden, owned by Thornton Holdings. The Council had intended that the permission should be limited by condition to a period of 5 years but, despite the relevant committee resolution authorising only such a conditional permission, it erroneously issued a decision notice which contained no conditions at all and thereby granted an indefinite consent. Thornton Holdings were aware of the error but did not query it with the Council and subsequently acted as if the permission had been limited to the intended and authorised 5 year period before seeking to rely for the first time on the erroneously issued permission after the 5 years had passed. A commercial rival of Thornton Holdings, Thornton Hall, only became aware of the error in July 2017 and launched a challenge to the erroneous permission in August 2017, some 5½ years after its issue.
In the proceedings Wirral acknowledged its error and supported Thornton Hall’s challenge, appearing through Alan in the Planning Court. Thornton Holdings resisted the claim. Despite the “extreme” delay, Kerr J granted an extension of time to bring the proceedings, found that the issue of the permission was unlawful and refused to exercise his discretion not to quash the permission. Thornton Holdings appealed. Alan represented the Council again in the Court of Appeal where, along with Thornton Hall, it was successful in resisting the appeal. The Court of Appeal upheld Kerr J. on all points. The Court’s judgment contains, in the context of a “wholly extraordinary” set of circumstances, a valuable restatement of the timing requirements for judicial review in planning cases, a useful discussion of when a planning permission is unlawful on the basis of lack of authority to issue it and a clear illustration of the principles to be employed in the exercise of the court’s discretion under section 31(6) of the Senior Courts Act 1981 in cases of undue delay in making an application for judicial review. More generally it provides a compelling example of “a case where it can truly be said that the exception proves the rule.”
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