Judge dismisses challenge over whether grant of permission for 133-home scheme was unlawful because biodiversity gain planning condition ought to have been imposed but was not
The question of when a planning application is ‘made’ is wholly dependent on context and in particular on the construction of the relevant regulatory or statutory provision, the High Court has found in a case concerning Bolton Council.
His Honour Judge Bird, sitting as a judge of the High Court heard that Bolton granted planning permission for 133 affordable homes to Westchurch Homes.
Morris Homes then sought permission to judicially review that decision on the ground that the grant was unlawful because the biodiversity gain planning condition ought to have been imposed but was not.
The judge said whether the failure to impose this was lawful or unlawful depended on when the application for planning permission was made.
If before 12 February 2024, Bolton was not required to impose it, but after that date it would have to.
The obligation to impose the condition arose from section 98 and schedule 14 of the Environment Act 2021.
Westchurch's planning application was received by Bolton on 11 January 2024, so before the deadline for the condition.
The council identified a number of problems with the application and drew them to Westchurch's attention on 30 January 2024, at the same time explaining what Westchurch would need to submit.
On 28 February 2024 Morris Homes informed Bolton that reports submitted with the application could not be relied upon because they related to its own different proposed development on the same site and it owned the copyright.
Bolton told Westchurch on 6 March 2024 that its application was inadequate and could not be dealt with.
Westchurch submitted a suite of new documents between 5 and 17 April 2024. The application was validated on 18 April 2024 and planning permission was granted on 3 October 2024.
Morris argued that on a proper construction of Reg.3 under the Environment Act 2021, 12 February 2024 is a hard deadline and so the application was not made before that.
HHJ Bird said: “In my judgment it is clear from the authorities that the answer to the question: ‘when is an application made’ is wholly dependent on context and in particular wholly dependent on the construction of the relevant regulatory or statutory provision in respect of which the question arises.
“Whether or not this application for judicial review is arguable depends entirely on the correct construction of Reg.3 of the Regulations. It is important that the authorities are considered in that light.”
He said Reg 3 only falls to be considered when planning permission has been granted on a given application and s.3(3) of the Town and Country Planning (Compensation) Act 1985) only falls to be considered when planning permission is refused or when conditional permission is granted. In each case the relevant authority must have reached a decision on the application and determined it. It follows in each case there must necessarily have been a valid, complete application.
HHJ Bird said while refusing Morris permission: “In my view the decision in Camden London Borough Council v ADC Estates Limited (1991 is binding on me. There is no material difference between sect.3(3) of the 1985 Act and Reg.3.”
He said any application, “no matter how flawed”, is capable of being saved by the later provision of correct documentation and would then become valid.
Mark Smulian