The High Court has handed down judgment on the appropriate remedy to be granted to a Claimant Gliding Club who had successfully challenged the lawfulness of a Council’s decision to grant prior approval for development only for all parties to discover (after the hearing was completed) that the decision had been of no legal effect because it had been notified out of time such that the developer had acquired the right to proceed with the development by virtue of paragraph W(11) of Schedule 2 to the GPDO.

The Claimant gliding club whose runway the developer would cross to access his development – causing real operational difficulties – was left without an effective remedy. The Court convened a remedies hearing and invited the Secretary of State to attend.

The Court declined to quash the Council’s decision as doing so would have no practical effect, instead making a declaration that the decision was unlawful.

The Claimant’s principal submission was that the grant of rights to the developer under paragraph W(11) had deprived it of its Article 6 rights was rejected. 

The Court agreed with the Secretary of State that the reasoning of the Court of Appeal in R (Nunn) v First Secretary of State [2005] Env LR 32 applied. The fact that the GPDO could be operated so as to violate Convention rights did not mean that it is repugnant to the Convention.

Leave was granted to the Claimant to amend its claim to formally plead a damages claim against the local planning authority.

Mark Westmoreland Smith acted on behalf of the Secretary of State as intervener in the remedies hearing.