Judicial review insights - hot topics part 3: False or misleading statements – when is getting it wrong fatal?

Can Certificates of Lawfulness ever be challenged or revoked if based on false information?

For Certificate of Lawfulness (CLEUD) applications, if application documents contain false and/or misleading information and that is reported in the officer’s report and shown to be key to the determination then the consequences can be severe. A certificate may be revoked by an LPA if it was found that false information had been furnished or if material information was hidden from the LPA. This happened to Ocado when it entered into an agreement for lease on the back of a CLEUD being granted for a 24-hour click and collect facility (the CLEUD was submitted by the landlord). The LPA subsequently found out that the CLEUD was granted on the basis of false information (a statutory declaration had withheld the fact that a key witness had not visited the site in the relevant period) so revoked the CLEUD. Ocado judicially reviewed the revocation but was unsuccessful as the court found that the withholding of information did not need to have been deliberate (R (Ocado Retail Ltd) v Islington LBC [2021] EWHC 1509 (Admin)).

What errors can lead to planning permissions being quashed?

With respect to planning permissions, there are other factors to be aware of along with false statements, such as inaccurate plans and misleading officer reports. These too can give rise to grounds for judicial review challenge or a permission not being implementable for a developer’s intended scheme.

1. Inaccurate plans
   In the case of Choiceplace Properties Ltd v SoS for Housing, Communities and Local Government, planning permission was granted subject to conditions, including the condition to carry out the development in accordance with approved plans. Shortly after the development had commenced, the Claimant’s architect advised the developer that the street-scene drawing was inaccurate such that it showed the proposed development would be lower than its neighbours when it fact it would be higher. The claimant applied for a CLEUD on the basis that the permission could still be lawfully implemented despite the inaccurate drawings. The certificate was refused and the claimant lost at the appeal and at the High Court. The High Court held that the Inspector was correct in concluding that an inaccurate plan submitted with the application meant the development could not lawfully be implemented and that a plan submitted with an application was more than merely illustrative, unless a note on the drawing specified this was not the case. If the developer had gone ahead and constructed the building it would have been at risk of enforcement action requiring its demolition.
   
   
2. Omissions or misleading statements in officer report

In respect of inaccuracies or omissions in officers’ reports, the main questions to ask are:

• whether the report was materially misleading to members
• had the inaccurate advice not been provided would the committee have come to a different decision?

The answers to the above questions are subjective and can only be determined on a case by case basis.

In the case of R(Irving) v Mid Sussex, the court found the grant of planning permission was unlawful due to the officer’s report omitting key development policies. The policies were directly relevant to the development and more onerous than the policies cited. The court therefore found that failing to include these policies in the report meant the officer had provided misleading information to the committee and had the policies been included, the committee may have reached a different decision.

In contrast, the case of R(Brommell) v Reading Borough Council [2019] JPL 501, the High Court found that it was not necessary to set out every relevant policy of the NPPF. Omitting important comments from key officer can also be a fatal flaw. In R (on the application of Kinsey) v Lewisham, the case officer had failed to include adverse comments from the conservation officer regarding impact of the development on nearby listed buildings.

In the recent case of R(Thurston Parish Council) v Mid Suffolk, Thurston Parish Council were successful in their claim against Mid Suffolk’s decision to grant planning permission to Bloor Homes for 210 dwellings outside the settlement boundary established in the Parish’s Neighbourhood Plan. The High Court found the planning committee was misled by the advice it had been given in the committee report regarding the weight to be given to the neighbourhood plan and whether the development was in contrary to it.

The cases therefore shine a light on the importance of submitting accurate plans and ensuring all the information contained in the officer’s report is accurate and relevant.  This also acts as a helpful reminder to examine the officer’s report thoroughly to make sure the relevant polices are cited in order to avoid challenges by third parties and avoid planning permissions being challenged. If errors are spotted by applicants before the decision is reached, it is always worth considering contacting the officer to suggest that an addendum report is published with corrections.