Sarah McKeown successfully defends local authority in judicial review claim concerning planning

03 March 2020

Sarah McKeown defended the successful local authority in a claim for judicial review concerning planning permission. Permission to bring the claim had been refused on the papers and the claimant requested an oral hearing to renew his application for permission to bring a judicial review.

Background to the case

The claimant had been granted planning permission to extend his house to accommodate his son (who was disabled within the meaning of s.6 Equality Act 2010) and his son’s family.  The extension was built, but it did not comply with the planning permission in several respects. Significantly the extension had 2 bedrooms rather than the 1 for which permission had been given.  The claimant applied for retrospective planning permission, which was refused and a subsequent appeal was dismissed.

The local authority issued an enforcement notice under section 172 Town and Country Planning Act 1990. The notice required, among other things, removal of the second bedroom.

However the claimant did not remove the second bedroom. Instead he made 2 further applications for retrospective planning permission. These were both refused and appeals in respect of these decisions were dismissed.

The claimant made a third application for retrospective planning permission. But the local authority issued a decision that it declined to determine the application (s.70 Town and Country Planning Act 1990).  The claimant’s solicitors then sent the local authority a pre-action letter relying on s.140 Equality Act 2010 and asserting that the local authority had acted irrationally. The local authority then agreed to issue a fresh decision.

It did so, and declined to determine the application (s.70 Town and Country Planning Act 1990). This was the decision under challenge.  The claimant’s case was that the local authority had not issued a fresh decision. He argued:

  • the local authority had simply reviewed past decisions
  • his son could not continue to live at the premises if the second bedroom was removed
  • the local authority had failed to properly consider s.149 EA 2010
  • the local authority  had acted irrationally.

The matter came before Mr. James Strachan QC (sitting as a Deputy High Court Judge) who refused permission.  He found that the local authority had considered the matter afresh, that it had had the due regard required by s.149 Equality Act 2010, which was referred to in the decision and it had not acted irrationally.

Joshua Swirsky acted for the claimant.