Corbett v Restormel Borough Council & Anor

Factual and Procedural Background

The Appellant, Councillor Corbett, a councillor and council tax payer within the district of Restormel Borough Council, appealed a judgment refusing to quash a planning permission unlawfully granted by the Council in 1997. This permission had been modified prior to the judicial review proceedings by the Secretary of State under section 100 of the Town and Country Planning Act 1990, entitling the landowner, Company A, to compensation for the loss attributable to the modification under section 107 of the Act. Councillor Corbett initiated the judicial review seeking to quash the permission to prevent compensation payments. The Council itself did not appear in the appeal, though another councillor had unsuccessfully sought quashing on the Council's behalf. Company A opposed the appeal, wishing to retain the compensation entitlement.

The background involves a series of planning permissions: an original full permission granted in 1990 to Company B for non-food retail units with specific conditions limiting floor space and unit subdivision; a 1994 outline permission granted to receivers for Company B for buildings including non-food retail with similar conditions; and a 1997 outline permission granted to Company A (landowner since 1994) extending the 1994 permission with repeated conditions. The Council failed to refer the 1994 and 1997 applications to the Secretary of State as departures from the Development Plan, a procedural error.

Following a reserved matters application by Company A in 1997 showing subdivision into numerous smaller units, concerns were raised by the Council and other authorities. The Government Office for the South West informed the Council that the applications should have been referred to the Secretary of State and that the grant appeared "grossly wrong." The Secretary of State initiated a local public inquiry in 1999, which concluded the permissions conflicted with planning policies and recommended modification of the 1997 permission to remove non-food retail use. The Secretary of State accepted these recommendations and made a modification order in 2000, awarding costs against the Council.

The Deputy Judge held the 1997 permission unlawful for procedural failures but declined to quash it as a matter of discretion, considering factors such as the absence of blame on Company A, reliance interests, delay in judicial review, and the compensation scheme under the Act.

Legal Issues Presented

1. Whether the unlawfully granted 1997 planning permission should be quashed or upheld as a matter of discretion.
2. The effect of the Secretary of State’s modification order on the validity and consequences of the planning permission.
3. The balance between legal certainty, principle of legality, and reliance interests in public law decision-making.
4. The appropriate exercise of judicial discretion in quashing unlawful administrative decisions where compensation is payable.

Arguments of the Parties

Appellant's Arguments

• The unlawfully granted planning permission should be treated as if it never had legal existence, thus no compensation should be payable to Company A.
• The Judge erred in treating Councillor Corbett’s case as merely supporting the Council’s position and in refusing to quash the permission.
• Company A did not validly rely on the 1997 permission to let the 1994 permission lapse, as they were not in a position to submit acceptable reserved matters within the 1994 permission’s timeframe.

Respondent's Arguments (Company A)

• The Judge’s decision not to quash the permission was correct, considering the reliance interests and the compensation scheme.
• The appeal should only succeed if the Judge’s discretion was demonstrably wrong or if irrelevant matters were considered.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Berkeley v Secretary of State for the Environment and another [2000] 3 WLR 420	Judicial discretion to quash unlawful administrative decisions; balancing legality and reliance interests.	Supported the proposition that courts have discretion to refuse quashing and should consider harm to parties resisting quashing.
R v Bassetlaw District Council, ex parte Oxby [1998] P.C.L.R. 283	Principle that unlawful planning permissions should generally be quashed unless material change of position or other factors justify refusal.	Extensively cited to illustrate the balancing of interests and the discretion exercised in quashing planning permissions.

Court's Reasoning and Analysis

The Court acknowledged the procedural unlawfulness of the Council’s grant of the 1997 permission for two independent reasons: failure to consider the Development Plan properly and failure to refer the application to the Secretary of State. However, the Court emphasized the exercise of judicial discretion in deciding whether to quash the permission.

The Court reasoned that quashing the permission would not serve a planning purpose because the harm was prevented by the Secretary of State’s modification, which also triggered compensation rights for Company A. The Court recognized the legitimate reliance by Company A on the permissions, including acquisition of land and expenditure of time and money, and noted the substantial delay in seeking judicial review.

The Court balanced two fundamental public law principles: the principle of legality requiring unlawful acts to be struck down, and the principle of legal certainty protecting reliance on public decisions. The Court accepted that these principles often conflict and that courts have discretion to refuse quashing where appropriate.

The Court also considered that the compensation scheme provided by statute mitigated the public interest in quashing. It noted that the Council had maintained the lawfulness of the permissions until the modification inquiry and that the appellant’s case was effectively aligned with the Council’s position, which faced real difficulties in seeking judicial review.

Ultimately, the Court found no error in the Judge’s balancing of factors and upheld the refusal to quash, emphasizing the absence of planning harm and the protection of reliance interests through compensation. The Court rejected the appellant’s contention that the permission should be treated as never having existed and that compensation should be denied.

Holding and Implications

The Court DISMISSED the appeal, affirming the Deputy Judge's refusal to quash the unlawfully granted 1997 planning permission.

The decision means that the modified planning permission remains valid, and Company A retains entitlement to compensation under the Town and Country Planning Act 1990. The ruling underscores the discretionary nature of quashing unlawful administrative acts, particularly where statutory compensation schemes exist and where reliance interests and delay are significant. No new legal precedent was established; rather, the Court applied established principles balancing legality and legal certainty in the context of planning law.