Dangers of jumping the planning gun

Posted: 3rd October 2013

GirdersA developer found itself mired in judicial review proceedings after prematurely starting work on a major waste incinerator project prior to obtaining council confirmation that pre-commencement conditions had been satisfied.

The developer was granted planning permission for the ‘energy from waste’ plant and other facilities subject to conditions, compliance with which had to be approved by the council before work could start. However, the developer had begun building operations on the site prior to the required approvals being obtained.

Members of an action group opposed to the project argued that, in failing to take enforcement action to stop the works and to require restoration of the site, the council had ‘effectively condoned' the unlawful commencement of the development and short-circuited environmental checks and public consultation requirements.

In subsequently purporting to revoke the pre-commencement conditions and to retrospectively approve the works that had been carried out, the council had, on the basis of inadequate information, adopted an irregular, ad hoc procedure which deprived objectors of their right to make representations.

For its part, the council insisted that it had acted lawfully and that the case against it was 'unarguable'. It submitted that it was fully entitled to approve details under the pre-commencement conditions once the development had started. The developer had a valid planning permission with several years to run and had submitted detailed environmental information prior to the decision under attack.

The council argued that it had properly decided that it was not 'expedient' to take enforcement action, also arguing that the challenge to its decision had been lodged too late, commercial contracts having already been entered into. Even if the challenge succeeded, the council submitted that it was extremely unlikely that the developer would be required to cease works, which were well advanced, and restore the site to its pre-developed state.

The Court noted that the action group faced ‘formidable difficulties' in fighting its case in court but observed that the actions of the developer in starting work prematurely, and of the council in effectively condoning such conduct, might conceivably raise matters of legitimate concern over the procedural propriety of what occurred.

Although declaratory relief might well be all that was available to the action group, its case could not be characterised as hopelessly unarguable. In those circumstances, the Court directed an expedited hearing of the judicial review challenge at which all arguments, including delay,could be deployed.