Court Rules on Discretion of Planning Authorities in Case of Expired Planning Permissions

Citation: [2024] EWHC 440 (Admin)
Judgment on

Introduction

The High Court of Justice in the King’s Bench Division Planning Court issued a judgment in the case of Zipporah Lisle-Mainwaring v The Royal Borough of Kensington and Chelsea, which touches upon the legal principles concerning the determination of applications to discharge planning conditions and the question of whether a planning authority has the discretion not to determine such applications when linked to an expired planning permission.

Key Facts

The claimant, Mrs. Zipporah Lisle-Mainwaring, sought to quash the decision by the Royal Borough of Kensington and Chelsea (RBKC) approving a Construction Traffic Management Plan (CTMP) as required by a condition attached to the 2019 planning permission granted to the Interested Party. The CTMP was submitted after the planning permission’s initial expiry date but before the authority’s decision, raising the question of whether the permission had been implemented in time.

RBKC approved the CTMP despite the expiry of the permission date, basing the decision on the principle that development had started as per “the Whitley principle,” and the related application for approval was made prior to the permit’s expiration.

The case analysis revealed several key legal principles and caselaw references:

  1. Officer’s Report Misdirection (Mansell v. Tonbridge and Malling BC [2017]) – The court must determine whether the planning officer’s report materially misled the committee members. This analysis extends to oral advice provided in the committee meeting, and such advice should not alter the substantive information contained in the written report.

  2. Material Consideration (R (on the application of Friends of the Earth Ltd.) v. Heathrow Airport [2020]) – A material consideration in planning law is a factor that should be taken into account in making a planning decision. It was argued whether the discretion to decline to determine an application after the planning permission has expired constitutes such a consideration.

  3. Obligation to Determine Applications (Bovis Homes (Scotland) Limited v. Inverclyde District Council [1982], R (Billings) v. First Secretary of State [2005], and R (on the application of GOESA Limited) v. Eastleigh BC [2022]) – Local planning authorities have a continuing obligation to determine valid planning applications unless directed otherwise by the Secretary of State.

  4. The ‘Whitley Principle’ (FG Whitley & Sons Co Ltd v Secretary of State for Wales [1992]) - Woolf LJ established that operations contravening planning conditions do not commence development authorised by the permission. A recognised exception is if approval for reserved matters is granted after the expiration of a time limit, provided no enforcement action can be taken.

Outcomes

The court decided that:

  • The plaintiff’s argument that the committee was materially misled was unfounded, as both the written and oral advice did not misdirect the members regarding the nature of the decision before them.

  • The existence of a discretion not to determine the application was not considered a mandatory material consideration, nor was it presented as such during the committee meeting.

  • A local planning authority does have a continuing obligation to determine applications to discharge planning conditions, and it does not have the discretion to decline to determine such an application simply because it was determined after the expiration of the time limit to begin development.

Based on these findings, the court dismissed the claim.

Conclusion

In this case, Deputy High Court Judge Neil Cameron KC articulated the limits of a planning authority’s duty concerning the determination of planning conditions. The judgment reaffirmed that material misdirection by planning officers could invalidate planning decisions but concluded that the RBKC had not materially misled its committee members in approving the CTMP. Furthermore, the court elucidated that the discretion not to determine an application for approval of conditions is not a material consideration that a planning authority needs to take into account. This decision maintains the principle that local planning authorities are under a continuing obligation to determine such applications, shaping the process for future planning permission considerations.