Practice and Procedure

R (On the application of SEAMUS GAVIN) v HARINGEY LONDON BOROUGH & WOLSELEY CENTRES LTD (Interested Party) (2003)

PUBLISHED November 12, 2003

Despite the council's conduct in failing to follow advertisement requirements under the Town and Country Planning (General Development Procedure) Order 1995 SI 1995/419, the hardship or prejudice to the developers was a sufficient reason to refuse quashing the planning permission.Application by the claimant ('G') for judicial review of a grant of planning permission by the defendant council to Wolseley Centres Limited ('W'), on 22 September 2000, for a major re-development of a site for business purposes. Art.8(4) Town and Country Planning (General Development Procedure) Order 1995 SI 1995/419 ('the order') obliged developers to publicise a notice of the planning permission at the site or serve the notice on adjoining owners by local advertisement. The council followed its normal practice of serving notices on adjoining owners and occupiers by putting a notice in a local paper, which unfortunately did not cover the site. Following the grant of permission, the works commenced in August 2002. G lived directly opposite the southern end of the site and did not receive notice of the proposed application. G was unaware of the grant of planning permission until March 2003. G lodged a claim for judicial review and sought a quashing of the planning permission or declaratory relief. G submitted that: (i) there had been a failure to comply with the publicity requirements in the order; (ii) Art.8(4)(a) of the order imposed on the council a discretion to consider which of two methods would give adequate notice of the application to those interested, as the council had simply served notice on adjoining owners and occupiers rather than using site notices, there had been a failure to give proper consideration to the exercise of the statutory discretion; (iii) there had been a failure to comply with the requirement to consider whether the application required an environmental statement ('EIA') pursuant to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 SI 1999/293. W submitted that although there had been a failure to comply with the publicity requirements in the order, there had been undue delay in making the objection and the relief ought to be refused on the grounds of hardship, prejudice or detriment to the good administration of justice, as referred to in s.31(6) Supreme Court Act 1981.HELD: (1) If it was incumbent on a local planning authority to make a discretionary judgment between the two alternatives in Art.8(4)(a), it was permissible to decide to adopt a general practice rather than to assess each individual case separately. (2) G had been prejudiced by the serious procedural error in failing to comply with the publicity and EIA requirements and by being denied an opportunity to make representations in opposition to a development that affected his home. (3) The admitted failure to comply with Art.8(4)(b) would have been a sufficient reason for quashing the grant of planning permission if there had been a timely challenge. G was not to blame for the delay, but there had been an undue delay within s.31(6) Supreme Court Act 1981 and quashing the planning permission after the lapse of time and in the circumstance now existing would cause substantial hardship to W. (4) The adverse financial consequences for W were large and were not to be discounted by reference to the speculative possibility that the fresh application for planning permission might succeed, or that full enforcement action might not be taken, or that losses might be recouped by the claim in damages against the council. (5) Even allowing for the criticism of W's conduct, that they were the authors of their own misfortune by failing to check that the requirements had been met, the hardship or prejudice to W was a sufficient reason for the refusal of a quashing order. (6) A declaration would be made that the council had failed to comply with the relevant publicity and EIA requirements but a quashing order was refused.Order accordingly.

[2003] EWHC 2591 (Admin)