Tesco at Little Lever - Reply to my complaint from Bolton Council

Following my Complaint of maladministration by Bolton Council in the matter of the Tesco Application for Pennine Pets (86999/11), I have received the following response from Tim Hill, Chief Planning Officer.

This was by letter which I have transcribed.

Dear Sir,

Further to your letter dated 28 February 2013 addressed to Helen Gorman you raised a number of concerns regarding the determination of planning application 86999/11. These are as follows:

1)      Planning permission relating to the above development is unlawful because the Certificate of Ownership submitted with the original planning application was inaccurate as a number of people who should have been served notice were not and (according to advice published by North Somerset) the application should have been withdrawn to enable a fresh application with a correct Certificate of Ownership to be submitted. You consider the Council was not able lawfully to entertain and thus determine the original application.

2)      That the letter from Mr Harris dated 02/02/2012 was published on the Council’s website under the date of 01/01/1900 which you think was misleading.

I would comment as follows:

In relation to the validity of the Certificate of Ownership and the lawfulness of the current planning permission (Ref: 86999/11), this is a matter which is ultimately for the Court through the established process of judicial review.

You correctly detail the timetable of events for application 86999/11 whereby you informed Mr Allen (the case officer) that the Certificate of Ownership was inaccurate on 23/01/12. Mr AAllen informed the planning agent for the application on 30/01/12. Subsequently the planning agent provided an updated list of persons who had been served notice within their letter of 02/02/12. The application was subsequently considered by Planning Commmittee members in May 2012 who delegated final approval to the Director of Development and Regeneration pending the signing of a s.106 agreement. The final decision is dated 17/08/12.

I note therefore that the time period within which an application for judicial review could and should have been submitted has now expired. However, my view is that in any even the Council has not failed to follow procedures or the law and the granting of planning consent was not unlawful.

There is no express or implicit requirement in the TCPA 1990 to the effect that the notice must pre-date the submission of the planning application and nor is such a requirement to be found expressly or impliedly in the articles of the relevant order. Article 11 of the Town and Country Planning (Development Management Procedure) (England) Order 2010 does not fix the date when the notice must be given; it simply fixes the relevant date for ascertaining whether someone is an owner of the land for the purpose of determining who needs to be given notice.

The Court has recently held (in the case of R(on the application of O’Brien) v West Lancashire BC (2012) that, if the Act or the Order had intended to make it clear that the notification had to take place before the application was issued, it would done so. There was no express requirement to that effect nor could one be implied. In that case the Court’s attention was drawn to the guidance published by North Somerset Council but the Court attached no weight to this. This is only guidance used by North Somerset Council – it is not a determination of the law.

The reason for the certification requirement is to enable the applicant to confirm to the planning authority that the notification requirements have been complied with; it is not a document which is intended or required to be publicly displayed or relied upon by the public at large.

In relation to your other concern, you infer that is was the Council’s desire to this information ‘in plain sight’ as it was dated 01/01/1900 on the application file contained on Bolton Council’s website. In fact, this was a simple oversight. The information was scanned in accordance with our normal practice, but it would appear that no scanning date was recorded for the document and therefore a default date of 01/01/1900 was allocated by our system to the document which is ( as you have found) published on the website and clearly referenced ‘Additional Notice under Article 11’. I have asked my technical support team to amend the date to reflect the actual position and thank you for drawing this oversight to my attention.

For the reasons set out above, I do not propose to take any further action on this matter.

I trust this clarifies the matter but if you are not satisfied with my decision you may appeal in writing to the Chief Executive of the Council within 28 days of the date of this letter at: Chief Executive, Bolton Council, Town Hall, Victoria Square, Bolton, BL1 1RU. Please quote reference DER0679272 in any correspondence.

Yours sincerely

Tim Hill

Chief Housing and Planning Officer.