R (on the application of Wallis) v North Northamptonshire Council

Judicial review – Extension of time – Planning permission – Developer acquiring site and applying for planning permission to demolish existing buildings and construct distribution centre – Defendant local authority failing properly to give notice to neighbours – Claimant applying for permission, out of time, to apply for judicial review of grants of planning consent – Whether claimant failing to apply promptly – Application dismissed  The claimant applied for permission, out of time, to apply for judicial review of two grants of planning consent by the defendant local authority for development at a former Weetabix site at Earlstrees Road, Earlstrees Industrial Estate, Corby, namely: (i) permission for change of use of the site from B2 to B8, in 2021; and (ii) construction of a new building (following demolition of existing buildings) with Class E industrial, Class B2 (general industrial) and Class B8 (storage and distribution) uses, in 2022. The second interested party took no part in the proceedings. Prior approval had been granted and implemented to demolish the old factory in 2021. The first interested party purchased the site in 2022, applied for planning permission and began ground works in late September 2023. Notice of the application was published in a local newspaper and the defendant’s website. However, there were errors in the processing of the application and notification letters were not sent to the claimant, who lived near the site, or her neighbours.  However, the demolition works, marketing boards erected on site and monthly newsletters sent out on behalf of the contractor, beginning before the start of development, which drew attention to the permission and what it authorised, indicated that the development had commenced. The claimant and other residents argued that they had been adversely affected by the development because of its overbearing height and scale, and the potential noise from the proposed development. Held: The application was dismissed. (1) There had been extreme “undue delay” in filing the claim, more than 2½ years after the 2021 planning permission, and more than 1½ years after the 2022 permission. Where a grant of planning permission was challenged by a claim for judicial review it was important for the claimant to act promptly and the claimant had to proceed with the greatest possible celerity because a landowner was entitled to rely on a planning permission granted by a local planning authority exercising its statutory functions in the public interest: R (on the application of Thornton Hall Ltd) v Wirral Metropolitan Borough Council [2019] EWCA Civ 737; [2019] PLSCS 80; [2019] PTSR 1794 applied. In this case, there was good reason for the initial delay, because of the failure to undertake neighbour consultation, but once the works began, and the claimant received notifications from the first interested party’s contractors, the claimant’s delay in commencing proceedings was unjustified. The grant of an extension of time to enable the claimant to proceed with her claim would substantially prejudice the first interested party who had just completed a major development for a new distribution centre at the site, in reliance upon the grant of planning permission by the defendant, and without any prior knowledge of the defects in the consultation process.  (2) The claimant did not receive neighbour consultation letters in respect of either permission, which would have notified her of the applications, due to errors by the defendant which intended to consult neighbouring properties but mistakenly selected the wrong addresses. There was clear evidence that it was the defendant’s practice and policy to carry out neighbour consultations for major applications, which it failed to follow. However, the statutory notification requirements in the Town and Country Planning (Development Management Procedure) (England) Order 2015 (DMPO) were largely complied with. The applications for planning permission were published in the local press, and on the defendant’s website, as required by article 15(4) and (7) of the DMPO and so it was not necessary to serve the notice on adjoining occupiers as well.  As the decision-makers were unaware of the error in identifying the relevant neighbours, and did not intentionally decide to proceed without neighbour consultation, it was difficult to classify their acts and omissions as irrational in the Wednesbury sense. They were more aptly classified as a material error of fact as the defendant granted planning permission in the mistaken belief that neighbour consultations had taken place, when they had not. (3) The claimant was a competent professional person capable of looking at the defendant’s website to check the details of the proposed development and contacting the planning officer to complain. Her reason for not doing so sooner was that she did not anticipate that the new building would affect her, as it would probably be housing. However, there was no basis for that assumption, and she took a considerable risk by not checking the details of the development earlier. She was living next to an established industrial estate, designated for employment use, not housing. Therefore, it was likely that the new development would also be a sizeable industrial building.   Although the claimant had a good reason for the initial delay in commencing proceedings because of the defendant’s failure to send neighbour consultation letters to her, she had not demonstrated a good reason for her subsequent delay, after the ground works commenced. A reasonable landowner would have checked the defendant’s website for details of the proposed development, or asked for more information, by October 2023 at the latest.  In this case, the claimant failed to act promptly. Once the claimant was aware of the details of the proposed development, she unreasonably delayed for nearly three months before filing her claim for judicial review. (4) In deciding whether there was good reason to extend time, the court had also taken into account the factors identified in Maharaj v National Energy Corporation of Trinidad and Tobago [2019] 1 WLR 983, namely, the importance of the issues, the prospects of success in the claim, the prejudice to the parties, and the public interest. Overall, the claimant had not succeeded in showing good reason to extend time. Therefore, the application to extend time and for permission to apply for judicial review would be refused.  The challenge to the 2021 permission for change of use was academic. In practical terms, it was superseded by the demolition of the buildings. It was never implemented and so it expired after three years, in September 2024.  Richard Harwood OBE KC (instructed by Goodenough Ring Solicitors) appeared for the claimant, Philip Coppel KC (instructed by North Northamptonshire Council) appeared for the defendant; David Elvin KC (instructed by CMS Cameron McKenna Nabarro Olswang LLP) appeared for the first interested party; The second interested party did not appear and was not represented. Eileen O’Grady, barrister Click here to read a transcript of R (on the application of Wallis) v North Northamptonshire Council