Even More Challenging Times – 5 More Risks Following The Grant of Planning Permission
This post is the second in a two-part series in which we highlight ten areas where the risk of a third party challenge against the grant of planning permission might arise. The list we have given is not exhaustive, but all issues fall within the broad parameters for judicial review grounds, being decisions which have been taken irrationally, ultra vires (outside the scope of the authority's powers), or with procedural irregularity.Risks one-five can be found here.
6. Taking into account inaccurate information
Local authorities must undertake a tricky balancing exercise when determining planning applications. Whilst courts tend to be reluctant to interfere with that process, authorities should be able to show that they have performed their obligation properly and not made an irrational decision. Where members have been misled by inaccurate information submitted by the applicant, or by misleading wording in an officer's report, this can cause doubt on the rationality of their decision.
Sometimes development plans can be delayed or slow in coming forward and an applicant may want to get on with his development without waiting for particular policies to get through the examination and adoption stages. There is nothing inherently wrong with that, but steps should be taken to show that granting permission will not prejudice an important emerging policy. The weight to be given to such emerging policies will depend on how far through the preparation process they have progressed at the relevant time.
8. Incorrect information on an application form
Whilst completion of the application form may seem like a simple box-filling exercise, there is plenty of room for mistakes to be made or misleading information to be included. Legislation specifically provides that local planning authorities should not determine applications which do not comply with the requirement to give certain information. A particular area of concern is often the ownership certificate, but other areas such as references to trees and access points can also give rise to challenges.
9. Failure to follow a committee's recommendation
Committee resolutions are often quite clear on the scope of the remit they are giving to officers when it comes to the actual grant of planning permission. Whether this is by imposing a deadline or by reference to a particular s106 obligation or condition which they want to see secured, officers must be careful to ensure that they are acting within their authority at all times. Sometimes officers will have a level of flexibility, but any variance from the committee resolution will be obvious to third parties so it pays to be careful.
10. Failure to consider the likely significant effects of the development on the environment
Environmental impact assessment regulations set out when environmental effects must be taken into account in the determination of planning applications. For some types of development, this is an absolute requirement and for others there are threshold limits. The situation can be unclear when it comes to variations to existing planning consents, or on applications for reserved matters, although the law lays down what requirements must be met. Failure by a planning authority to take into account an aspect of the scheme at the EIA screening stage can mean that important issues are not considered in the determination of the resulting application – a ripe area for third party challenge.
As before, if you would like to discuss any of these issues in more detail, please do get in touch. As lawyers, we can review application material and assist with the drafting of reports and more to check that everything is in the best order to minimise risks of challenge.