This time last year, in our September Spotlights, one story that particularly caught our eye was Swale Borough Council’s erroneous determination of five planning applications with reasons including that “your proposal is whack”, and “no mate, proper whack”. At the time, the Council was reportedly facing costs of some £8,000 to have the offending decisions quashed by way of judicial review. However, since then, we haven’t seen anything further reported with regards to how this was ultimately resolved. So, what did happen next? And, with the benefit of hindsight a year on, is there anything else the Council could have done?

The only mention we have managed to find as to what happened to the decisions comes from the Council’s redetermination of planning application reference 21/500222/FULL, the Committee Report for which refers to the decisions that were issued in error having been quashed by the High Court, and advises that this is akin to the clock on those applications having been wound back to a time before the quashed decisions were issued. In doing this, the Report also notes that the applicants will have suffered delay and inconvenience as a result, but makes it clear that this should not be taken into account when assessing the planning merits of the application, with the applicants effectively having to shoulder that.

There is though no mention in the Committee Report of the cost to the planning authority of the High Court action, but judicial reviews are not cheap, so this will not have been an ideal solution for the Council either. But did the Council have any other options?

On first impression, for the applications that were approved at least (of which there were three), the obvious answer might have been to just let these stand. However, this would only have been an option if they would have been approved anyway, and if no conditions were required to make the development to which they related acceptable. And this would have left one decision subject to conditions stating: “Why am I doing this, am I the chosen one?”, one in which the conditions were numbers, and one subject to conditions as follows:

  1. Complete works within 3 years
  2. Incy
  3. Wincy
  4. Spider

In contrast, while redetermination of all three of these applications has resulted in them still being approved, they are all subject to rather more onerous conditions than those which were cited on the original decision notices (and, it should be acknowledged, rather more sensible ones).

Another potential option for the applications that were approved might have been the use of statutory provisions which allow a planning authority to revoke or modify any grant of planning permission if it appears expedient to do so (as conferred under section 97 of the Town and Country Planning Act 1990 in England and Wales, and section 65 of the Town and Country Planning (Scotland) Act 1997 in Scotland). However, the making of a revocation order comes with the risk of the applicant objecting to this and claiming compensation, potentially resulting in an even more costly and drawn-out process than the judicial review route (as evidenced in a case involving Epson and Ewell Borough Council earlier in 2021, where the Council ultimately chose a judicial review over revocation of a planning permission for that very reason).

But, whilst a desire to avoid having to pay compensation might explain why the judicial review approach was taken in respect of the applications that were erroneously approved, it doesn’t explain why this was done in respect of those which were erroneously refused, for which the most obvious potential option would have been for the Council to have simply encouraged the applicants to resubmit their applications without payment of a further fee. However, while the fee regulations in both England and Scotland allow for the submission of a new application following the refusal of a previous one without payment of a further fee, this can only be done once, with planning authorities having no discretion to waive fees in circumstances other than those prescribed. Consequently, this option would not necessarily have been available to all applicants and, even where this might have been an option, it would have deprived others of the opportunity to take advantage of a ‘free-go’ in future should the second application also have been refused, such that they would have likely objected to this approach. And of course, this would have meant that the decisions, including the reasons for refusal cited above, would have remained legally binding, and the Council would have had to keep these online, which they would presumably have wanted to avoid!

Lastly, some commentators have asked whether the decisions could not just be treated as not having been decisions at all, on the basis that no court would be likely to give effect to them, and that they were obvious nullities as a result. That would though run contrary to one of the key principles of public law, that public acts are to be regarded and relied upon as lawful unless and until quashed by the court and, in the interests of legal certainty, this probably wasn’t a realistic option for the Council here.

All this then points towards judicial review as perhaps having been the best course of action in this case, with the issue seeming to have been resolved without further controversy as a result (given the silence that has surrounded the matter since it was first reported last year). That said, it still seems somewhat of a sledgehammer to crack a nut approach, and an expensive one at that. Or, as some might put it, “whack”, “no mate, proper whack”.

Thanks for reading!

Pippa and Maggie


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