Can a Decision Notice be changed?

[Stewpot]

How set in stone is the Decision Notice for a planning application? Specifically, can the council add to, or amend the Notice, if, for example, they have granted approval, but inadvertently missed off a Condition or two? Is there the legal scope for them to do this?

[ToughButterCup]

27 minutes ago, Stewpot said:

... inadvertently missed off a Condition or two? Is there the legal scope for them to do this?

 

Missed off a Condition or two ... hmmm.  I am not qualified to give legal advice. (yet ?)

 

I think the answer is , yes, they can, (here's chapter and verse; section 97)  but you would likely be able to claim compensation.  Here is  what I regard as a probably authoritative source about an issue close to the one you cite.

 

Your post intrigues: which conditions are missing in this hypothetical Planning Permission oversight? 

[Stewpot]

1 hour ago, ToughButterCup said:

 

Your post intrigues: which conditions are missing in this hypothetical Planning Permission oversight? 

 

 

It isn't hypothetical. In fact what appears to have happened is that the entire Schedule of Conditions has been missed off the Decision Notice. And this is not without antecedence - the Planning Permission in Principal (this is in Scotland), which was in place when I bought the plot, has a significant paragraph missing. This means that when they said my application for full plans wasn't complying with Condition 7, I was able to argue that it was, because the condition didn't actually require me to do what they thought it did. This approach was successful, although somewhat grudgingly.

 

I now have full approval. In the Officer's Report (to be found on the planning portal, but not otherwise sent to me), there are six conditions listed, but that entire section is absent from the Decision Notice. Most of them are fairly trivial - the usual stuff about submitting colours, finishes, details of the water connection, and such like, but one refers to the design of the windows, which has been a bone of contention throughout the application process. The condition would have asked me to resubmit drawings with redesigned windows.

 

Thanks for you links - I also found this: https://www.localgovernmentlawyer.co.uk/planning/318-planning-features/22731-the-finality-of-decisions

 

Quote

The issue was more fully considered by the Scottish Court of Session (Outer House) in Archid Architecture and Interior Design v Dundee City Council [2013] CSOH 137, [2014] J.P.L. 336. The Council had issued a notice which said it granted planning permission subject to conditions but contained no conditions and under the reason for the decision set out what was plainly a reason for refusal. Six months later the Council said that the decision notice was incorrect and sent out a new notice which stated that planning permission was refused. Lord Glennie reviewed the English and Scottish authorities extensively (although not including Holder) and held that the first notice was valid unless and until the court ruled otherwise. The Council had no power to issue a further decision until that had been done.

 

This suggests that it would require a court ruling before the council can add the missing conditions.

 

Wasn't there some case recently where a planning department was trying out some new software, and, thinking they were filling in dummy Decision Notices to test it, the Notices actually got issued, and were irrevocable?

[Temp]

5 hours ago, Stewpot said:

How set in stone is the Decision Notice for a planning application? Specifically, can the council add to, or amend the Notice, if, for example, they have granted approval, but inadvertently missed off a Condition or two? Is there the legal scope for them to do this?

 

My understanding is they cannot change it if its just an error. They can in some cases but its subject to paying compensation..

 

https://www.no5.com/media/publications/what-do-you-do-when-youve-been-granted-planning-permission-by-administrative-error/

 

If you have the benefit of a planning permission and the Council wishes to revoke its decision, it cannot simply remake a decision. It is established case law that local planning authorities cannot withdraw and re- issue decision notices to correct errors following an administrative mistake. Section 97 of the Town and Country Planning Act 1990 (“the TCPA”) allows councils to revoke or modify a planning consent “to such extent as they consider expedient” with regard to the development plan and any other material considerations. The Act does not define the test of expediency. The power to revoke or modify a planning permission conferred by s.97 is subject to liability to pay compensation.

 

 

[Temp]

2 hours ago, Stewpot said:

 

I now have full approval. In the Officer's Report (to be found on the planning portal, but not otherwise sent to me), there are six conditions listed, but that entire section is absent from the Decision Notice. Most of them are fairly trivial - the usual stuff about submitting colours, finishes, details of the water connection, and such like, but one refers to the design of the windows, which has been a bone of contention throughout the application process. The condition would have asked me to resubmit drawings with redesigned windows.

 

Planning Officers reports aren't binding. It's quite common for Planning Committies to disregards Planning Officers reports. For example the PO might recommend approval/refusal and the committee might dissagree qnd vote the other way entirely.

 

I've seen cases where the PO recommends approval, the committee refused it and the poor PO had to go and "find" valid reasons for refusal because the ones the committee gave wouldn't stand up at appeal. This case came up while I was waiting to speak at the planning meeting.

 

 

[Temp]

3 hours ago, Stewpot said:

Wasn't there some case recently where a planning department was trying out some new software, and, thinking they were filling in dummy Decision Notices to test it, the Notices actually got issued, and were irrevocable?

 

Yes..

https://metro.co.uk/2021/09/08/kent-council-worker-rejects-planning-applications-by-mistake-and-calls-one-whack-15225658/

 

A council worker accidentally made legally binding planning decisions thinking they were just testing the system, leaving comments like ‘incy wincy spider’ as their explanation.

The worker didn’t realise their comments would ever be made public.

However, in actual fact several applicants received a rejection or approval that hadn’t been properly considered, with an animal sanctuary even being told ‘Your proposal is whack’ and ‘No mate, proper whack’.

Five applicants using the Swale Borough Council planning portal were affected after staff were testing solutions to a software problem on August 19, resulting in dummy comments being mistakenly sent out for real.

The error is now expected to cost at least £8,000 of public funds to fix, as the decisions have to be overturned by a judicial review.

This will take around three months, resulting in a delay to the applicants.

The Happy Pants animal sanctuary in Sittingbourne was one of those affected, after they put in an application to change agricultural land to be used for its animal rescue.

It was rejected, with the feedback: ‘Your proposal is whack’ and ‘No mate, proper whack’.

Forad Miah had also applied for a change in use of land, this time from a butchers to a hot food takeaway, and was told: ‘Just don’t’ and ‘No’ in reply.

An application to partially demolish the Wheatsheaf pub, also in Sittingbourne, was granted with the comment ‘incy, wincy, spider’.

Meanwhile, an application to demolish the Old House At Home pub so flats could be built instead was also granted, with the comment ‘Why am I doing this, am I the chosen one?’

The council also approved the change of use of a barn in Tunstall.

Amey James, founder of The Happy Pants Ranch, told Kent Live: ‘Obviously the comments are quite laughable, but if I had gone on there this morning before I saw the email from Swale council about the error I think I would have had a heart attack – I would have been properly panicking; the future of the ranch depends on this decision.

‘I kept thinking this was going to go to the planning committee in September, but now because of this, it’s probably going to be delayed even further.

‘At this rate, we are probably not going to know by Christmas. It’s just awful not knowing.’

Swale Borough Council has started an investigation and said that a junior officer at the Mid Kent shared planning service believed that the comments would not be published.

They removed the erroneous decisions from their site as soon as they realised.

Despite this, the council’s legal advice has said that they are legally binding and that it will now have to quash them through judicial review.

The council’s leadership team, Councillor Roger Truelove and Councillor Mike Baldock, said: ‘These errors will have to be rectified but this will cause totally unnecessary concern to applicants.

‘This is not the first serious problem following the transfer of our planning administration to Mid Kent shared services.

‘We will wait for the outcome of a proper investigation and then consider our appropriate response as a council.’

 

 

 

 

 

 

[Stewpot]

2 hours ago, Temp said:

 

Planning Officers reports aren't binding. It's quite common for Planning Committies to disregards Planning Officers reports.

 

 

I don't think this went to committee. Would I have been informed if it had? I suppose it could have been the advice of a senior colleague, or maybe the case officer just changed his mind. But even so, for the whole schedule to be omitted...?

 

I know the Officer's Report as no legal status, but I would guess that it can be used as evidence of their intention, should this go to law. The question really becomes two more:- How likely are they to discover the error (what would bring it to their attention?), and are they then likely to go to law to try and correct it? If I build according to plans, they really only have the window design to beef about, and I don't really think it amounts to that much of a beef - they are not that unusual. Other houses in the village have similar windows, including an immediate neighbour.

 

I think the omissions, both at the PPP stage and at this stage, is evidence of an over worked, under staffed and under valued department that simply can't keep up with the workload. I wonder how many other mistakes are slipping through. Perhaps they won't have the capacity to give this application a second glance, now, unless someone raises a particular issue.

 

[Temp]

Sorry if this is obvious but...

 

Did they just forget to print a page? I think I would check that the planning grant you were sent matches the electronic copy of the planning grant online. Forget about the Planning Officers report. If both copies are the same and you got all pages then I'd just get on with it. 

 

Is the missing schedule referred to elsewhere in the planning grant? If not then again I'd just get on with it.

 

If you fitted really horrible out of keeping windows and the planners wanted to force you to rectify the situation I believe they would have to pay out for a Judicial Review (around £10k) and they would have to pay you compensation (costs to replace the windows). So over all I think it very unlikely they would go down that route.

 

[Stewpot]

57 minutes ago, Temp said:

 

Did they just forget to print a page?

 

 

They sent me an electronic copy, and it's the same as the one on the planning portal.

 

The Decision Notice has sections under different headings. I've seen several of these notices from this particular authority, and they have always listed the Schedule of Conditions between the Reason for the Decision section, and the For the Information of the Applicant section.

 

There simply is no Schedule of Conditions in any form, either in the Decision Notice itself, or appended to it, and nor does it refer to a separate document annexed elsewhere.

 

However, the covering letter with the Decision Notice says "Please read the schedule of conditions...", but this may just be a standard paragraph. Elsewhere, the Notice says "Subject to compliance with the schedule of conditions...", but again, this may be a standard paragraph, and I think both could be read to imply "... if there is one".

 

I can't really believe it's happened; I should have bought a lottery ticket last week. I think you're right - I should just crack on.

Edited February 6, 2022 by Stewpot