Ellie Shemming, Planning Law solicitor at Holmes & Hills discusses the accidental and comical (but still legally binding) grants and rejections of planning permissions by Swale Borough Council.
A council employee tasked with trying to resolve a software issue on Swale Borough Council’s planning website has accidently determined five live planning applications.
It is understood that the employee thought they had created five ‘dummy’ planning decisions to test that the Council’s website was working, but in error the decisions were accidently published against live planning applications, resulting in three grants of permission and two refusals.
If that was not bad enough for the Council, the conditions and reasons attached to the decisions provide for rather interesting reading! Take a look at the below:
1) Permission was granted for the demolition of existing public house and erection of a mixed-use building providing commercial floor space and 12no. flats.
The permission was granted subject to the following conditions:“(1) why (2) am (3) I (4) doing (5) this (6) am (7) I (8) the (9) chosen (10) one”.
2) Permission was granted for the partial demolition of existing public house and erection of extension to form flats.
The conditions of the permission included the following: “…(2) Incy (3) Wincy (4) Spider”.
3) Permission was granted for change of use of agricultural barn.
The conditions of the permission were simply stated as 1-20.
4) Refusal of permission for a retrospective application for change of use of land from agricultural to animal rescue.
The reasons for the refusal being: “Your proposal is whack” and “No mate, proper whack”.
5) Refusal of permission for a change of use of butchers to hot food takeaway.
The reasons for the refusal being: “(1) Just dont” and “(2) No.”
Whilst it may seem obvious that these decisions were made in error, in fact, they are binding decisions and cannot simply be withdrawn by the council.
If the Council wish to revoke the decisions, then they would need to do so either via specific statutory provisions or seek to quash by way of Judicial Review.
Neither may be that attractive to the Council for the mistakes made. Revoking the decision Under Section 97 of the Town and Country Planning Act 1990 entitles an applicant to compensation from the Council under Section 107 of the same Act (noting that there are further rules about what compensation may be claimed; in short needing to demonstrate that expenditure has been incurred in carrying out work rendered abortive by the revocation or otherwise that loss or damage has been sustained directly attributable to the revocation).
Alternatively, the Council will need to submit an application for Judicial Review in the High Court seeking permission to quash the decisions. This carries its own cost and there are strict time limits by which to issue a Judicial Review Claim in the High Court, being six weeks from the date of the decision. Further, the application would be by the Council seeking to overturn its own decision!
Whilst the above recent example is amusing, it does provide a useful reminder to Councils to be vigilant when issuing planning decisions, as the law is clear in that Council’s do not have the authority to simply withdraw a decision and a simple error could result in costly consequences!
For the applicant of an erroneous permission (or refusal) there is not an automatic right to compensation, and we would recommend that they seek advice before seeking to rely on the (erroneous) permission – or challenge the (erroneous) refusal. Simply to ensure that they understand their position and perhaps do not enable what may have been a simple clerical error to evolve into a much worse, and costly, situation.
Get expert Planning Law advice from Holmes & Hills Solicitors large Planning and Development Team. Recognised as being a leading source of Planning Law advice and representation in the region and the country by multiple organisations, the team has acted for a number of clients who have suffered at the hands of a local planning authority's clerical error.
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