1 THE ISSUE

1.1 To authorise and support an application by Councillor Les Kew to issue a claim for Judicial Review in the High Court to quash a purported grant of outline planning permission in respect of 12, Tyning Road, Peasedown St. John, Bath, for the erection of a new dwelling. The decision notice purporting to grant permission was issued in error and needs to be quashed.

1.2 Such authorisation to be taken under the Urgency Rules Part 4(G) Rule 4 and the Access to Information Rules Part 4(B) Rule 16 of the Council's Constitution

2 RECOMMENDATION

The Cabinet Member is asked to agree that:

2.1 a) An application be brought by Councillor Kew in Judicial Review proceedings in the High Court to challenge and quash a purported grant of planning permission dated 26^th June 2008 relating to the erection of a new dwelling within the garden of 12, Tyning Road, Peasedown St. John, Bath, BA2 8HT.

b) That the Council resolves not to defend the claim.

c) To indemnify Councillor Kew as the Claimant, and the Planning and Environmental Law Manager as his Solicitor, for all costs, expenses and claims on his behalf and against him, both in the proceedings and consequent upon them.

d) Authorise, if it be so needed, the Planning and Environmental Law Manager to act for Councillor Kew in the proceedings.

3 FINANCIAL IMPLICATIONS

3.1 The legal costs of the Judicial Review proceedings including the instruction of Counsel will be higher if the matter is dealt with by way of a hearing in the High Court. The fee for Counsel drafting the papers for the High Court will be £125 per hour capped at £1250 plus VAT. This cost covers both cases. Further costs of around £150 will be incurred for attendance of Counsel at the Court in London. The Court fee is £50 if there is no hearing. Further potential costs can not be ruled out at this stage as this depends upon whether the interested parties ask for a hearing which will require further instructions for Counsel to attend. However the Interested parties would be at risk of a costs award against them if they choose this course of action.

3.2 The potential costs to the Council of taking no action to correct the error may be worse if the erroneous decision is acted upon in the false belief that it is sound.

3.3. Cost to be met by the Planning Service

4 CORPORATE PRIORITIES

4.1 It is essential that the erroneous planning permission, which was an administrative error, is quashed in order to protect the Council in its role as Local Planning Authority and to ensure that the public are not mislead as to the validity of this planning permission and reliance is placed on it.

5 THE REPORT

5.1 Judicial Review is a supervisory jurisdiction by the High Court and a means by which, for example, an administrative decision by a Local Authority can be set aside where there has been an error and no other remedy is appropriate.

5.2 This is achieved by a Claimant (usually a Councillor from the Authority) applying to the High Court to quash a decision. The Council cannot be the Applicant because it is the Defendant to the proceedings. It is proper, however, for the Council's Legal Department to act for the Claimant at the Council's expense and for the Council to indemnify and underwrite the cost.

5.3 The beneficiary of the decision, which is sought to be set aside, is a party to the proceedings and is known as "the interested party".

5.4 This procedure is used infrequently. This is because there are often statutory provisions to rectify an error or an appeal procedure to which the Council can consent, or a review process by Government. None of these options apply adequately in this case.

5.5 The background and circumstances of the error are as follows:

5.6 On 10^th April 2008 the Council received an outline planning application to erect a dwelling within the garden of 12, Tyning Road, Peasedown St. John. Unfortunately, the application was not accompanied by the required information indicating the proposed access to the site and the scale of the proposed house. The applicants' agent was requested to supply this information which was received on1st May 2008.

5.7 On 1^st May 2008 the application was validated and given the application no. 08/01343/OUT. The application was allocated to a firm of Planning Consultants to determine. The Planning Consultants were, at that time, engaged by the Council to help with the determination of planning applications due to a temporary shortage of staff within Planning Services.

5.8 On 9^th May the Case Officer carried out a site inspection and on 12^th May he received a telephone call from the applicants' agent enquiring of his opinion about the proposal. The Case Officer advised the agent that the proposed dwelling was not in a suitable location and that it would affect the character of the area, would block views and would take up green space which is important to the character of the area. The agent was advised that the application would be likely to be recommended for refusal and the agent was also advised of the procedure to appeal against such a refusal. The agent advised the Case Officer that he did not want to withdraw the planning application.

5.9 The application was determined in accordance with the Council's Scheme of Delegation in that the Case Officer produced a report which assessed the proposal against the Council's policies within the Bath and North East Somerset Local Plan, including minerals and waste policies, adopted October 2007. He took account of all the representations that had been received about the proposal and recommended that the application be refused for the following reason:

5.10 The proposed dwelling would result in the development of an important open corner site that contributes to the character of the area. It would therefore harm the character of the public realm; would not respond to the local context in terms of its siting, spacing and layout; and would fail to reinforce or compliment the locally distinctive character of the area. The proposal is therefore contrary to Policies D.2 and D.4 of the Bath and North East Somerset Local plan and guidance contained in the Peasedown St. John Village Statement SPD.

5.11 The Case Officer returned the case file and submitted his report to the Council on 24^th June. This report was read, accepted and counter signed by one of the Team Leaders in Development Management on 25^th June after which the file, containing the recommendation, was passed to the administrative support staff to issue the decision.

5.12 The administrative staff are required to use the Council's `Uniform' system to check that the officers report relates to the correct application and then to enter the relevant information onto the Council's computer system to generate the correct Notice of Decision. After clicking onto a `Decisions' tab a `Recommendation' field is opened up where the correct decision code is selected from a drop-down menu. It was at this stage that the error occurred in that the `approve' code was selected instead of the `refuse' code. Also, as the `approve' code had been selected the reason given by the Case Officer to refuse the application was inserted as a condition of the planning permission.

5.13 The system automatically generated the Notice of Decision which was dated 26^th June 2008 and at the same time the administrative staff would have put a copy of the decision on the Council's Website and despatched a copy to the applicants' agent.

5.14 The Council became aware of this error when it received a letter dated 10^th July 2008, on 14^th July 2008 from a firm of solicitors representing the applicant. The letter stated that the permission did not give any time limit for the commencement of development or refer to any reserved matters, which is normally the case.

The Council responded in a letter dated 29^th July 2008 that the decision to permit the development had been issued in error, apologised for the error and stated that the Council would be seeking the revocation of the erroneous permission. It was suggested in that letter that the permission might be revoked by legal agreement under Section 106 of the Town and Country Planning Act 1990. Officers have since been corresponding with the applicant's Solicitors in this regard but at present it would appear that this course of action may not be viable as the applicant is not the owner of the property and the owners and their mortgagee would need to be party to the agreement. The permission has not been implemented.

5.15 The Council therefore needs to revoke or quash the erroneous decision notice and it is considered that an application to the High Court for Judicial Review is the most appropriate way forward in the circumstances.

1) The Cabinet Member is therefore asked to authorise the Council's appearance in the proceedings generally and the resolution in particular, under Section 222 Local Government Act 1972. This is a general power given to Local Authorities to appear in proceedings.

2) The matter is urgent for this reason. An application for Judicial Review must be made expeditiously and no later than three months after a decision which is sought to be challenged. A Local Authority may risk claims for damages if the decision remains in being and the recipient of the decision enters into contracts in reliance upon its validity.

3) This matter needs to be dealt with quickly because the longer the matters are left outstanding the greater the risk is that the High Court will not exercise its discretion to quash the decision.

4) In so far as Councillor Kew, as the proposed Claimant, needs to be legally advised and instruct Counsel, it is appropriate if the Planning and Environmental Law Manager provides this service at the Council's expense.

5) To maintain propriety, since the Council will be the Defendant, legal advice to the Council will have to be given separately by the Solicitor to the Council or his Deputy so that in being asked to consent to and support the application there is some appropriate division in the advisor.

6) The Planning and Environmental Law Manager is fully satisfied that the proposed application is necessary and urgent and that it is appropriate for Councillor Kew to be invited to be the Claimant. He has consented to undertake this task, subject to the resolution, as drafted and has been advised of the facts and law by the Development Manager.

7) The Deputy Monitoring Officer has considered the matter and will advise the Cabinet separately that the proposed action is necessary and urgent and that the proposed resolution to the Cabinet is legally sound and wholly appropriate.

8) Since both Officers are admitted Solicitors, they need to consider their capacity to advise the Council and the Claimant on the same matter. Taking into account that there is no conflict between the Claimant's application and the interest of the Council, both Officers have satisfied themselves that the arrangements made in this case are appropriate and maintain legal propriety.

Subject to the proceedings not being opposed by the recipient of the planning permission, it is most likely that the application to quash the purported grant of permission will be dealt with quickly and without actual appearance in London before a High Court Judge.

If the High Court makes an Order to quash the decision it will be in terms that the planning application is remitted back to the Council to determine as if the purported permission document had never been issued.

The Council would then process the application either under delegated powers at officer level (as previously) or by referring the application to the Development Control Committee.

In an attempt to avoid a similar error happening again the procedures for issuing a decision notice have been amended. It is now a requirement that once one administrative officer has processed a planning application another administrative officer checks the decision notice before it is posted to an applicant or agent.

6 RISK MANAGEMENT

6.1 The report author and Cabinet Member have fully reviewed the risk assessment related to the issue and recommendations, in compliance with the Council's decision making risk management guidance.

7 RATIONALE

7.1 If action is not taken to revoke this erroneous permission then there is a risk that an uncontrolled development will take place that will cause significant harm to the character and appearance of the area. The Council may also be liable for any loss or damage caused by any person acting in reliance of the erroneous permission.

8 OTHER OPTIONS CONSIDERED

8.1 Officers are investigating the possibility of dealing with the matter by way of a Section 106 Agreement but, as explained above, this may not be possible, especially in view of the tight timescale. It is not considered that the statutory revocation procedure is appropriate because this could expose the Council to liability to pay compensation on what is clearly an administrative error.

9 CONSULTATION

9.1 Cllr Les Kew was consulted on this matter by the Development Manager on 14^th August by telephone and e-mail.

9.2 In accordance with Part 4(B) Rule 16 the comments of the Chief Executive, the Monitoring Officer and the Chief Financial Officer were sought, together with the agreement of the Chair of the Overview and Scrutiny Panel for Corporate Performance and Resources that the decision could not reasonably be deferred

10 ISSUES TO CONSIDER IN REACHING THE DECISION

Under the Human Rights Act 1998 it is necessary for the decision maker to balance public and private interests and be satisfied that the application for judicial review is lawful, necessary to achieve a legitimate aim, namely the correction of a genuine administrative error, proportionate and justified.  In considering whether it is proportionate the decision maker should consider whether works have been commenced or any expenses incurred between the purported grant of the planning permission and the notification to interested parties that the purported grant of planning permission was an administrative error.  If any works have been commenced it is necessary for the decision maker to balance the public and private interests.  If any expenses have been incurred it might be appropriate for these to be reimbursed.

Other legal considerations have been addressed in section 4 of the report.

11 ADVICE SOUGHT

11.1 The advice of the Deputy Monitoring Officer and the Planning and Environmental Law Manager has been sought in the production of this report.

a) The Council's Section 151 Officer (Strategic Director - Support Services) has had the opportunity to input to this report and have cleared it for publication.