High Court judge berates systems at council legal department

A High Court judge has criticised the systems in place in a local authority legal department in a case where the council failed to correct an error by one of its planning officers swiftly once it had been pointed out.

In Knowles-Fitton, R v Craven District Council [2011] EWHC 212, Mr and Mrs Godson owned a poultry farm in Clapham, Lancaster and decided several years ago to diversify into holiday homes. Craven DC was the local planning authority for the area.

The Godsons were granted planning permission in 2003 by the council for the erection on their land of a chalet or chalets. This included restrictions which prevented the buildings from being used as permanent homes.

In 2007, Mr & Mrs Godson sought and were granted planning permission for “one timber chalet in addition to planning permission already granted for eight timber chalets (and amended layout)”.

The parties agreed that the officer who granted the 2007 planning permission under delegated powers intended to make it subject to a condition restricting the use of the chalet or chalets to holiday purposes and prohibiting use as a permanent residence or residences. By mistake, no such condition was attached to the consent.

Work then began on the development, but problems with the planning status of the site meant that the first sale of one of the plots fell through. Informal discussions about the issue took place between Mr Godson’s agent and the council in February 2010.

On 16 April the Godsons’ solicitors wrote a formal letter to an officer in the council’s planning services department, with a copy to the head of legal and democratic services. They asserted, giving reasons, that the 2007 planning permission was a freestanding consent for nine units without restriction to occupation. On 14 July, the Godsons lodged an application for a lawful development certificate.

On 20 October, Craven DC sought to challenge the 2007 planning permission through an application for judicial review brought by its leader, Cllr Chris Knowles-Fitton, in his own name.

The High Court was asked to determine whether:

• The planning permission permitted the erection of nine chalets, as argued by Mr and Mrs Godson, or only one chalet, as contended by the council
• The planning permission should be quashed, as requested by the council, on the ground that it was granted in error.

His Honour Judge Langan QC ruled that the planning permission applied to the erection of nine chalets.

The judge also rejected the council’s application for a grant of extension of the time set by CPR 54.5(1) in which to bring judicial review proceedings. The local authority’s claim form had been issued over three months late or after double the permitted time had elapsed.

This delay, the judge said, was both “inordinate” and “inexcusable”. The letter sent on 16 April 2010 – effectively starting the clock in this case – had raised a serious question of legal interpretation, but it was only at the end of June that it was referred for an opinion to a member of Craven’s legal team.

Advice from the legal team received on 14 July – two days before the expiry of the three-month time limit – made it clear that the council would have to proceed by way of judicial review. However, the decision to commence litigation was not taken until 8 September and a further six weeks passed before the claim form was issued.

Considering the issue of prejudice and whether to allow the council extra time, Judge Langan said there was no reason to doubt Mr Godson’s evidence that: specific sales had been lost because of the uncertainty about occupancy restrictions; the loss of sales had had serious financial consequences for Mr and Mrs Godson because of the way their bank loan was structured; and planning uncertainty would have cast a blight over potential sales during the summer of 2010.

“These were uncompensatable losses in respect of which Mr & Mrs Godson have no cause of action,” the judge said, adding that if the 2007 planning permission were to be quashed, the couple would lose the opportunity of recouping some of those losses through the sale of chalets at the higher prices which the absence of a residence restriction would attract.

The judge acknowledged that on the other hand, if the 2007 planning permission were to stand, the effect would be to bed in to an area of outstanding natural beauty a breach of established planning policy. “It must, however, be observed that no evidence has been filed by the council as to any special harm (that is, harm going beyond any which is envisaged by the general considerations regarding new housing in rural areas) which would be occasioned by the permanent occupation of chalets on this particular site.”

Judge Langan said whilst the Godsons might receive an unexpected windfall at the cost of the breach of policy, it would be used in part to pay extra interest charges. He ruled that the competing considerations as to prejudice favoured Mr and Mrs Godson.

The judge added that the factor of good administration – ie that the council should have been permitted to have corrected in the public interest a plain mistake made by one of its officers – would have been a powerful point if the claim had been launched promptly. But he said: “It cannot, in my judgment, assist the council in the light of the pre-litigation history…. Indeed, there is a sense in which poor administration would be rewarded by permitting the claim to proceed.”

Refusing the extension of time and dismissing the claim for judicial review, Judge Langan said as an addendum: “The controversy between the council and Mr and Mrs Godson started with a slip made by a planning officer. The slip was regrettable, but anyone can make a mistake, and no one would seek to attach much blame to the officer.

“Where, in my judgment, the council went seriously wrong was in its failure to attempt to correct the error as soon as it was pointed out. From what I have seen (and I may not have seen everything), the fault appears to rest squarely with the legal department of the council. If the appearance reflects reality, then, in the interests both of its taxpayers and of those who depend on its services, the council needs to address with some urgency the systems which are operated within that department.”

A spokeswoman for Craven DC said the council had felt allowing all nine chalets to have unrestricted occupancy may have in the future had a negative impact on the surrounding area. “It was felt that it was appropriate to take reasonable action to correct the error – hence the review.”

She added: “The council has taken the judge’s comments on board and measures have been put in place to address the issues raised.”

Philip Hoult