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Developers – Are Your Planning Permissions Lawful? Don’t Jump the Gun!

Unlawful planning permissions are regularly overturned by judges, and those who pre-empt their decisions by carrying out developments prematurely do so at their own risk. In one such case, however, the High Court found that a council was justified in refusing to take immediate enforcement action to remove an unauthorised fence.

The case concerned a quarry set in a coastal area of outstanding natural beauty. After a period of closure, the council had granted consent for the quarry to be resume operations until 2035. There was no dispute that that permission had been granted after proper consideration of environmental issues.

The council subsequently also granted consent for a perimeter fence to be erected around the quarry. That permission was later overturned by a judge following a successful challenge by a local campaign group. However, by that time, the fence had already been erected. The council subsequently decided against issuing an enforcement notice, requiring the fence’s immediate removal.

In dismissing the campaign group’s challenge to the latter decision, the Court noted that the council had a wide discretion as to whether or not to take enforcement action. Arguments that there had been no adequate consideration of the need to protect wild fauna in the area, particularly bats, were rejected. The quarry’s owner argued that the fence’s removal would create serious health and safety issues and it had rightly been given the opportunity to make a fresh planning application that would be accompanied by full environmental information.

Giving guidance for the future, the Court considered that judges should be slow to entertain judicial review applications in respect of failures to take enforcement action against particular unauthorised developments. It was apparent that the campaign group’s real complaint was not about the fence but about the re-opening of the quarry.

R on the Application of Community Against Dean Super Quarry Limited. Case Number: CO/4821/2016