Did You Know That Local Authorities Have The Power To Revoke Planning Permission Once It Has Been Granted?

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Did You Know That Local Authorities Have The Power To Revoke Planning Permission Once It Has Been Granted?

Lorraine Moss
I did not until yesterday.  I always thought that once it was granted it was basically end of story.  It is not a straight forward process and does have to be agreed by The Secretary of State.

Revocation of planning permission
Standard Note: SN/SC/905
Last updated: 22 May 2013
Author: Louise Smith
Section Science and Environment Section
Planning permission vests development rights in the land, and the local planning authority
has no power simply to withdraw a permission unilaterally. Once planning permission has
been granted, then any revocation of the permission leaves the applicant able to claim
compensation. The local planning authority has the power to revoke planning permissions
under section 97 of the Town and Country Planning Act 1990 (as amended).
The power in section 97 of the 1990 Act can only be used before the development is
complete. After that date, a local planning authority can use a power to order discontinuance
under section 102 of the Act. Confirmation by the Secretary of State is required under
section 103. Again, there is a liability to pay compensation under section 115. The normal
measure of compensation is the damage suffered in consequence of the order by
depreciation of the value of an interest in the land or in minerals, or by being disturbed in the
enjoyment of the land or minerals.
This note describes the circumstances in which either the local planning authority or the
Secretary of State can revoke planning permission that has been granted by a local planning
authority. It applies to England and Wales.
This information is provided to Members of Parliament in support of their parliamentary duties
and is not intended to address the specific circumstances of any particular individual. It should
not be relied upon as being up to date; the law or policies may have changed since it was last
updated; and it should not be relied upon as legal or professional advice or as a substitute for
it. A suitably qualified professional should be consulted if specific advice or information is
required.
This information is provided subject to our general terms and conditions which are available
online or may be provided on request in hard copy. Authors are available to discuss the
content of this briefing with Members and their staff, but not with the general public.
2
Contents
1 The legal position 2
2 The position when planning permission was improperly granted 4
3 Power of the Secretary of State 4
3.1 Use of the power 4
4 Examples of revocation 5
1 The legal position
Planning permission vests development rights in the land, and the local planning authority
has no power simply to withdraw a permission unilaterally. Once planning permission has
been granted, then any revocation of the permission leaves the applicant able to claim
compensation. The local planning authority has the power to revoke planning permissions
under section 97 of the Town and Country Planning Act 1990 (as amended). The wording of
the section suggests considerable freedom for the local planning authority, but it is in practice
strictly constrained:
97 Power to revoke or modify planning permission
(1) If it appears to the local planning authority that it is expedient to revoke or modify
any permission to develop land granted on an application made under this Part, the
authority may by order revoke or modify the permission to such extent as they consider
expedient.
(2) In exercising their functions under subsection (1) the authority shall have regard to
the development plan and to any other material considerations.
(3) The power conferred by this section may be exercised—
(a) where the permission relates to the carrying out of building or other
operations, at any time before those operations have been completed;
(b) where the permission relates to a change of the use of any land, at any time
before the change has taken place.
(4) The revocation or modification of permission for the carrying out of building or other
operations shall not affect so much of those operations as has been previously carried
out.
(5) References in this section to the local planning authority are to be construed in
relation to development consisting of the winning and working of minerals as
references to the mineral planning authority.
(6) Part II of Schedule 5 shall have effect for the purpose of making special provision
with respect to the conditions that may be imposed by an order under this section
which revokes or modifies permission for development—
(a) consisting of the winning and working of minerals; or
(b) involving the depositing of refuse or waste materials.
3
For opposed cases, section 98(1) states that "an order under section 97 shall not take effect
unless it is confirmed by the Secretary of State". There is a liability to pay compensation,
under section 107 of the Act, in respect of expenditure rendered abortive by the order and for
any other loss or damage directly attributable to the revocation or modification.
Section 189 of the Planning Act 2008 made changes to the 1990 Act in respect of entitlement
to compensation in circumstances where planning permission granted by a development
order or a local development order is withdrawn. The explanatory notes to the 2008 Act set
out how the system now works:
300. Section 189 inserts new subsections (2A) (3B), (3C), (3D), (5) and (6) into section
108 of TCPA 1990. Section 107 of TCPA 1990 sets out the entitlement to
compensation where planning permission is revoked or modified. Section 108 extends
this entitlement to compensation to circumstances where planning permission granted
by a development order or a local development order is withdrawn. New subsection
(2A) provides that where planning permission of a prescribed description granted by a
development order or local development order is withdrawn by the issue of
directions under powers conferred by that order, compensation would be payable
only if an application for planning permission for development formerly permitted by
that order is made within 12 months of the directions taking effect.
301. The effect of new subsections (3B) and (3C) is that, where planning permission
granted by a development order is withdrawn, there will be no entitlement to
compensation where the permission was granted for development of a prescribed
description and is withdrawn in the prescribed manner, and notice of the withdrawal
is published not less than 12 months or more than the prescribed period before the
withdrawal takes effect. If development is started before the notice is published,
compensation will be available unless the order in question contains provision
permitting the completion of development.
302. Where planning permission granted by local development order is withdrawn,
subsections (3B) and (3D) provide that there will be no entitlement to compensation
where notice of the withdrawal is published not less than 12 months or more than the
prescribed period before the withdrawal takes effect. If development is started before
the notice is published, compensation will be available unless the order in question
contains provision permitting the completion of development.1
The power in section 97 of the 1990 Act can only be used before the development is
complete. After that date, a local planning authority can use a power to order discontinuance
under section 102 of the Act. Section 102(1) provides the main power:
102 Orders requiring discontinuance of use or alteration or removal of buildings
or works
(1) If, having regard to the development plan and to any other material considerations,
it appears to a local planning authority that it is expedient in the interests of the proper
planning of their area (including the interests of amenity)—
(a) that any use of land should be discontinued or that any conditions should be
imposed on the continuance of a use of land; or
(b) that any buildings or works should be altered or removed,
they may by order—
1 Planning Act 2008, Explanatory Notes
4
(i) require the discontinuance of that use, or
(ii) impose such conditions as may be specified in the order on the continuance
of it, or
(iii) require such steps as may be so specified to be taken for the alteration or
removal of the buildings or works,
as the case may be.
Confirmation by the Secretary of State is required under section 103. Again, there is a
liability to pay compensation under section 115. The normal measure of compensation is the
damage suffered in consequence of the order by depreciation of the value of an interest in
the land or in minerals, or by being disturbed in the enjoyment of the land or minerals; and
any person who carries out any works in compliance with the order is entitled to recover from
the local planning authority any expenses incurred by him.
In July 2012 the Supreme Court ruled that when local planning authorities are deciding
whether or not to revoke or modify a planning permission they are entitled to take into
account the compensation they could have to pay.2
2 The position when planning permission was improperly granted
The Sweet & Maxwell Planning Encyclopaedia notes that in cases where the planning
permission may not have been properly granted in terms of procedure, it may be better
financially for the local council to have the planning permission quashed at judicial review,
rather than revoke the planning permission and have to pay compensation:
However, if a planning permission has been granted in a way that was improper and
invalid, it may not be “expedient” for the local planning authority to commence
revocation proceedings under this section and to pay compensation. The court may
instead quash the permission on an application for judicial review, without liability to
compensation. Such an application may be made by a person supported by the
council, though the Court will in such a case have particular regard to the effect on
third parties.3
The rules about bringing a judicial review are strict however and a claim must be made within
legal time limits. In January 2013 it was reported that a leader of a council in Devon was
refused a judicial review of planning permission granted by mistake after the application was
lodged too late for judicial review proceedings. The council was left with a choice of paying
an estimated £500,000 in compensation to formally revoke the planning consent it had
granted, or to allow a supermarket to move into a retail park even though it was not
considered to be needed in the area.4
3 Power of the Secretary of State
3.1 Use of the power
The local planning authority has the power to revoke planning permissions under section 97
of the 1990 Act, but this has to be confirmed by the Secretary of State. The Secretary of
2 For more information see Planning Portal, Key ruling on revocation of planning permissions and costs, 2
August 2012 and Supreme Court press summary, The Health and Safety Executive (Appellant) v
Wolverhampton City Council (Respondent) [2012] UKSC 34, 18 July 2012 3 Sweet & Maxwell Encyclopaedia of Planning Law and Practice, P97.04 4 “Planning blunder leaves council facing stark choice” Planning, 24 January 2013
5
State also has the power revoke planning permission under section 100 of the 1990 Act. If
this is done the liability to pay compensation still falls on the local planning authority, as
though it had made the revocation order. In March 2006, the then Planning Minister
described the use of these powers:
Yvette Cooper: Local planning authorities have power under s97 of the Town and
Country Planning Act 1990 to make an order revoking or modifying a planning
permission, prior to it being implemented, where they consider it expedient to do so.
They should have regard to the development plan and to any other material
consideration. This is not a routine justification since the fact that planning permission
was granted indicates that the development was considered acceptable at the time. If
an order is opposed, it has to be confirmed by the Secretary of State before it can take
effect.
The Secretary of State has power, under s100 of the Town and Country Planning Act
1990, to revoke or modify a planning permission granted by a local planning authority.
Revocation or modification can only be made before a planning permission is
implemented. The Secretary of State can use these powers as he thinks fit, after
consultation with the local planning authority. Such intervention by the Secretary of
State can only be justified in exceptional circumstances. However, the Secretary of
State will generally use this power only if the original decision is judged to be grossly
wrong, so that damage is likely to be done to the wider public interest.
Where orders come before the Secretary of State the decision will be taken only after
considering the evidence by way of written representations, a hearing or a public local
inquiry. The more controversial cases will almost inevitably go to inquiry.
Since 1997 the Secretary of State has used this power on 5 March 1998 to make a
modification order to remove Al retail use from outline planning permission for an
industrial site granted by Alnwick district council and on 9 March 2000 to make a
revocation and a modification order in respect of proposals for a factory outlet
shopping village in an isolated location in Restormel, Cornwall.
The Office does not record representations received about the powers of the Secretary
of State to revoke planning permissions.5
The revocation of a planning consent by the Secretary of State is most unusual. The
Secretary of State already has a power for preventing consent being granted to major,
controversial proposals with effects spreading beyond the local planning authority. That is
the Secretary of State’s power to call in an application to determine it himself. He is also
able to recover to himself an appeal against rejection of a planning application.
4 Examples of revocation
It is fairly common for local planning authorities to revoke planning consent, subject to
approval by the Secretary of State. These cases do not, however, normally cover recent
consents. More often, they relate to old consents that have been started but not completed.
There may be some good reason why the proposal that gained planning consent would now
never be carried out. The local planning authority will have to pay some compensation but it
may be worthwhile, in order to enable them to develop derelict land. Unopposed cases are
normally approved, but opposed cases require a public inquiry.
5 HC Deb 16 March 2006 c2444W
6
In May 2008 planning permission was revoked for eleven dormant quarries in the Brecon
Beacons national park.
6
In 2007 the Peak District National Park Authority was allowed to revoke planning permission
at two quarries without compensation for the operator or landowner.
7
In 1993 Alnwick District Council granted planning permission to Northumberland Estates for
a supermarket near Alnwick. A protest campaign was launched two years later when
it
emerged that Safeway had bought the land. Protestors feared that Safeway would close its
existing branch in Alnwick and consolidate operations on the new site. The Secretary of
State in 1997 (John Gummer) revealed that he proposed to revoke the permission. The
council challenged the decision in the High Court but lost. Safeway submitted a claim for
£4.6 million in compensation for the loss of its planning consent. The council feared that it
might be bankrupted. However, in the end it was all settled amicably with the Duke of
Northumberland buying back the land that he had sold to Safeway. Safeway agreed to
forego £2.6 million of their compensation claim and accepted £2 million, which was paid by
the council’s insurers, Zurich Municipal.8
 


This is a document from The House of Commons Library.  You can view the PDF via this link http://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN00905
“Never be afraid to raise your voice for honesty and truth and compassion against injustice and lying and greed. If people all over the world...would do this, it would change the earth.”
― William Faulkner--
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Re: Did You Know That Local Authorities Have The Power To Revoke Planning Permission Once It Has Been Granted?

Lorraine Moss
Planning of Havering, have you ever known this to happen in Havering?
“Never be afraid to raise your voice for honesty and truth and compassion against injustice and lying and greed. If people all over the world...would do this, it would change the earth.”
― William Faulkner--
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Re: Did You Know That Local Authorities Have The Power To Revoke Planning Permission Once It Has Been Granted?

Planning of havering
Hi Lorain I'm not aware that this has ever happened in Havering. I think it could open a can of worms and I'm not certain if it would be open to chalange through the courts in this country and European courts. I think it would greatly depend on what had been granted and what conditions had been imposed
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Re: Did You Know That Local Authorities Have The Power To Revoke Planning Permission Once It Has Been Granted?

starry eyes
In reply to this post by Lorraine Moss
Hi Lorraine, you have worked hard at this, you deserve to win this.
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Re: Did You Know That Local Authorities Have The Power To Revoke Planning Permission Once It Has Been Granted?

Percy.
In reply to this post by Lorraine Moss
Which planning consent are you suggesting they revoke.
“The fool doth think he is wise, but the wise man knows himself to be a fool.”