Croyde Part 2 – Judicial Review and Certificates of Lawfulness

In the second article on the Croyde case, Roy Pinnock looks at the approach taken to certificates of lawfulness.

This article picks up from my previous article on JR time limits issues arising from Croyde Area Residents Association, R (On the Application Of) v North Devon District Council [2021] EWHC 646 – in which planning permission for substantial commercial development was quashed over six years later. 

Certificate issues

Permission had been granted unlawfully for an expanded site area in 2014.  A Certificate of Proposed Lawfulness was granted on appeal confirming the scope of the permission (LDC). The expanded scale of development referred to in the LDC had not been implemented.

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In defending the JR claim seeking the quashing of the 2014 permission (dealt with in the first article), the site owner resisted the exercise of the judicial discretion to entertain the JR claim on various grounds. One of which was that it would impermissibly undermine the LDC and deprive the owner of its benefit given:

  • the time limit for challenges to the SoS decision (s.284(1) TCPA 1990)
  • the intended conclusiveness of such Certificates (s.192(4) TCPA 1990).  

Limitations worth bearing In mind

The Judge accepted that:

  • The LDC only established proposed lawfulness on the date it was granted;
  • S.192(4) is clear that the conclusiveness of proposed lawfulness certificates is subject to any material change before the proposed use is instituted;
  • While the LDC Inspector had no choice but to reflect the extant permission in the LDC, quashing of the planning permission would be such a material change. They rejected the owner’s argument that material change should be a material change on the land itself.

The judgment therefore confirms that material change for s.192(4) includes judicial acts and determinations such as the quashing of an earlier planning permission.

Special circumstances required for backdoor challenges

The Judge was clear that Section 284(1) related to the LDC not the planning permission. The LDC is not intended to create absolute certainty of the use, given the material change provisions. Section 284(1) did not therefore deprive the Court of jurisdiction to hear the judicial review challenge to the underlying permission.

That said, it is clear that such challenges will still involve threading the eye of the needle:

  • It would be a highly unusual – if not exceptional – situation where the Court quashes a planning permission where the effect is to remove the benefit of an LDC;
  • “In the vast majority of cases the existence of an LDC will be an overwhelming reason not to quash a planning permission“;
  • This case was held to be exceptional:

- the development referred to in the LDC remained unimplemented (and a subsequent permission had been granted for the limited development actually intended in 2014);

- the scale of the impacts on the Area of Outstanding Natural Beauty and related public confidence in the planning system were given significant weight.

The outcome underlines that great care is needed when relying on Certificates, particularly where they are prospective.

Roy Pinnock is a partner in the Planning and Public Law Team at Dentons. This article first appeared on the firm's Planning Law Blog.

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