Marie-Claire Di Mambro, R (on the application of) v East Devon District Council [2026] EWHC 1961 (Admin)

[2026] EWHC 1961 (Admin)

Case No AC-2025-CDF-000090

IN THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

PLANNING COURT

Venue Bristol Civil & Family Justice Centre

2 Redcliff Street

Venue Bristol BS1 6GR

Date Thursday 6 th August 2026

Before

HHJ RUSSEN KC

(sitting as a Judge of the High Court)

Between

THE KING (ON THE APPLICATION OF MARIE-CLAIRE DI MAMBRO)Claimant

EAST DEVON DISTRICT COUNCILDefendant

(1) ARTHUR AIREYInterested Parties

(2) NICHOLAS JOHN AIREY & CLAUDIA FRANCES NAPIERInterested Party

(3) SECRETARY OF STATE FOR HOUSING, COMMUNITIES AND LOCAL GOVERNMENTInterested Party

Marie-Claire Di Mambro (the Claimant, with written submissions from her solicitors Keystone Law)

Odette Chalaby (instructed by East Devon District Council) for Defendant

Ruchi Parekh (instructed by the Government Legal Department) for Secretary of State for Housing, Communities and Local Government

for The First and Second Interested Parties were not represented

Hearing Hearing date: 14 th July 2026

(draft judgment circulated to parties on 28 July 2026)

This judgment was handed down remotely at 10.00am on Thursday 6 th August 2026

by circulation to the parties or their representatives by e-mail and by release to

The National Archives.

.............................

HHJ RUSSEN KC

APPROVED JUDGMENT

HHJ Russen KC:

[1]This is my judgment on the “issue of additional remedies” identified by the terms of the Order dated 8 January 2026 explained below. The issue is thought to arise out of the Claimant’s successful claim for a judicial review of a decision made by the Defendant (“the Council”) as the local planning authority.

[2]The Council’s decision was dated 29 April 2025 and it gave the First Interested Party (“IP1”) notice of prior approval of certain planning matters relating to the proposed development of land at Shoots Lane, Sheldon, Devon EX14 (“the Decision”). IP1’s application, as to whether prior approval of the authority would be required for those matters, was one made on 5 March 2025 under the provisions of the Town and Country Planning (General Permitted Development) (England) Order 2015 (“the GPDO”) which I set out below.

[3]The land at Shoots Lane is owned by the Second Interested Party (“IP2”). I refer to IP1 and IP2 together as “the IPs”.

[4]Ms Chalaby on behalf of the Council told me that the Claimant lives some distance from the land and that was the case when the Council made the Decision. The Claimant did not challenge this. Written submissions filed by her solicitors, and addressing the potential remedy of damages, said that the issue raised by her for my determination:

“…. is of broad importance to the other objectors to this application (as well as to any hopeful future judicial review litigants in similar cases), notwithstanding the Claimant’s lack of an existing association with the area which may make the pursuit of damages academic in her own case.”

[5]Following the Decision, on 12th May 2025, the Claimant sent the Council a pre-action protocol letter in advance of seeking a judicial review of the Decision. The Council conceded the Claimant’s challenge for the following reasons set out in its letter dated 28th May 2025:

“The Officer Report did not properly address whether the subject building was an agricultural building “so used for the purposes of a trade or business”, nor whether the agricultural building was part of an “established agricultural unit” (including as regards whether the aggregate/cumulative floor space thresholds for the unit were exceeded). These matters were integral to the determination of whether the proposals fell within the permitted development rights under Schedule 2, Part 3 Class R of the Town and Country Planning (General Permitted Development) (England) Order 2015 (“GPDO”).”

[6]The IPs did not respond to the Claimant’s invitation to agree a consent order providing for the Decision to be quashed.

[7]However, the Claimant and the Council did agree terms and, on 23 December 2025, HHJ Jarman KC approved the terms of an order agreed by the Claimant and the Council on 6 November 2025. The Consent Order was sealed on 8 January 2026 (“the January Order”). It granted the Claimant permission to apply for judicial review and ordered that the Decision to be quashed.

[8]Paragraph 3 of the January Order provides:

“The First Interested Party’s application bearing reference 25/0491/PDR be remitted to the [Council] for re-determination.”

[9]So far as the claims to the additional remedies are concerned, the January Order provides: “4. The parties are to deal with the issue of additional remedies on the following basis:a. Within 28 days of the service of this Order, any party may file with the court and serve on all other parties, submissions as to the appropriateness of additional remedies.

b. Any party may serve submissions in reply within 21 days of the service of those submissions.

c. Thereafter the Court will issue its decision, or at the Court’s discretion, schedule an oral hearing prior to making its judgment. ………… 6. Costs are reserved in relation to any submissions on additional remedies.” a. Within 28 days of the service of this Order, any party may file with the court and serve on all other parties, submissions as to the appropriateness of additional remedies. b. Any party may serve submissions in reply within 21 days of the service of those submissions. c. Thereafter the Court will issue its decision, or at the Court’s discretion, schedule an oral hearing prior to making its judgment.

[10]The Statement of Reasons in support of the January Order began by setting out what I have summarised above (including the above quote from the Council’s letter dated 28 May 2025 which was said to be the grounds for quashing the Decision) and recorded the Council’s agreement to pay the Claimant’s costs of the bringing the claim. Paragraph 5 of the January Order made provision for the Council to pay the Claimant’s “costs of bringing the substantive claim” in the sum of £17,000.

[11]Separately from the substantive challenge to the Decision, section 8 of the Claimant’s Claim Form identifies additional remedies in the form of:

“……. 4) A Declaration in relation to the legal implications of a quashing order with regard to the provisions contained in paragraph W(11) of Schedule 2, Part 3 of the Town and Country Planning (General Permitted Development) (England) Order 2015. 5) A claim for damages to compensate for any unjustified interference with the Claimant's human rights, as may be required following any Declaration which is to made by the Court in respect of (4) above.”

[12]By its letter dated 28 May 2025, the Council had said:

“The Council’s view is that, adopting either a purposive or Human Rights Act compliant interpretation, the quashing of the Decision would not enable the First Interested Party to begin development by virtue of paragraph W(11)(c) GPDO. That interpretation appears to accord with the indication of the High Court in the underlined passage above [in R (Coventry Gliding Club) v Harborough District Council [2020] EWHC 3388].”

The passage in Coventry which the Council had underlined was that set out in paragraph 44 below.

[13]The Statement of Reasons in support of the paragraph 4 of the January Order (additional remedies) says:

“5. The submission to judgment is agreed without prejudice to the parties’ positions in relation to all other aspects of the Claimant’s grounds of claim. 6. Paragraph W(11) of Schedule 2, Part 3 of the GPDO provides as follows: “The development must not begin before the occurrence of one of the following— (a) the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required; (b) the receipt by the applicant from the local planning authority of a written notice giving their prior approval; or (c) the expiry of 56 days following the date on which the application under sub-paragraph (2) was received by the local planning authority without the authority notifying the applicant as to whether prior approval is given or refused.” 7. In R (Coventry Gliding Club) v Harborough District Council [2020] EWHC 3388 (Admin) the Court considered the judgment in R. (aoa) Nunn v First Secretary of State and T-Mobile (UK) Ltd [2005] EWCA Civ 101 and in particular, whether the developer’s right to develop would become unconditional in circumstances where a prior approval decision, properly made and communicated within the stipulated time period laid down by paragraph W(11), was subject to a subsequent quashing order. 8. The parties consider that these issues are directly relevant on the specific facts of the present case, and which may therefore justify the granting of additional remedies by the Court, including a Declaration, where the effect of a quashing order leaves open the question of the First Interested Party’s residual legal rights, and the corresponding legal duties of the Defendant, vis a vis the First Interested Party’s application for prior approval in light of the provisions contained in paragraph W(11) of Schedule 2, Part 3 of the GPDO and the rulings in Coventry Gliding Club and Nunn. The Claimant considers that, if appropriate, additional remedies could also include an order for Damages.” “The development must not begin before the occurrence of one of the following— (a) the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required; (b) the receipt by the applicant from the local planning authority of a written notice giving their prior approval; or (c) the expiry of 56 days following the date on which the application under sub-paragraph (2) was received by the local planning authority without the authority notifying the applicant as to whether prior approval is given or refused.”

[14]So far as the Council is concerned, the Statement of Reasons therefore reflected something of a shift from the position it had adopted in its letter of 28 May 2025.

[15]The Claimant’s submissions on additional remedies were filed on 2 February 2026. Within them, as alternative to declaratory relief about the quashing of the Decision and/or damages, the Claimant invites the court to consider making a declaration of incompatibility in relation to the relevant part of the GPDO. The submissions stated that, on that basis, the Claimant had accordingly notified the SoS pursuant to section 5 of the Human Rights Act 1998 (“the HRA”). In addition to the declaratory relief and claim to damages mentioned in the Claim Form, the Claimant’s submissions also raised the possibility of the court granting a mandatory order and/or injunctive relief in relation to the Council’s re-determination of the application in accordance with paragraph 3 of the Order dated 6 November 2025.

[16]By an Order dated 28 May 2026 I granted the Secretary of State for Housing, Communities and Local Government (“the SoS”) permission to intervene in the proceedings pursuant to section 5(2) of HRA. The SoS had filed written submissions in relation to additional remedies on 22 May 2026. The order provided that those should stand as his written submissions in the case and further made provision for further brief oral submissions to be made on behalf of the SoS at the hearing if that was considered necessary or desirable.

[17]At the hearing, the Claimant relied upon the written submissions prepared by her solicitor, Mr Ben Garbett of her solicitors Keystone Law, and she made brief oral submissions at the hearing in response to those of counsel. The Council was represented by Ms Odette Chalaby and the SoS by Ms Ruchi Parekh of counsel.

[18]The Council responded to Claimant’s written submissions on 18 February 2026 and the SoS filed written submissions on 22 May 2026. Their position is that this is not a case for any additional remedy to be granted. The Claimant filed further written submissions on 30 June 2026 which were Mr Garbett’s response to those filed by the Council and the SoS. Those submissions and a witness statement of Mr Garbett were the subject matter of the claimant’s application to rely upon them which was made on 1 July 2026. I only became aware of the application the day before the hearing. At the hearing, I gave the Claimant permission to rely upon the further submissions but not the witness statement which sought to rely upon what the SoS had said in other cases about the effect of the GPDO in circumstances akin to the present.

[19]I am grateful to Ms Chalaby, Ms Parekh, the Claimant and Mr Garbett for the clarity and focus of their respective submissions, written and oral. The IPs were not represented at the hearing. The Core Issues

[20]The key issues for determination are how paragraph W(11) of Part 3 of Schedule 2 of the GPDO should be interpreted in circumstances where the Decision (notified and received by IP1 within the 56-day period stipulated by that provision) was subsequently quashed, and whether the effect of the provision in those circumstances is such to support the granting of any of the additional remedies identified by the Claimant.

[21]As appears from the text of paragraph W(11(c), set out in paragraph 31 below, its effect is one of deemed consent to an application for prior approval (in the sense that the applicant is not thereafter precluded from beginning the development) if the local planning authority has not within 56 days of receiving the application responded by notifying the applicant as to whether prior approval is given or refused. I refer to this in the remainder of the judgment as “the Deemed Consent Rule”.

[22]The central plank of the Claimant’s case on additional remedies is that the quashing of the Decision means that (despite paragraph 3 of the January Order providing for a re-determination of the application) the IPs could well benefit from the Deemed Consent Rule. The Claimant’s submissions dated 2 February 2026 said the Deemed Consent Rule “is now engaged”. In her oral submissions at the hearing, the Claimant said she remains at risk of the IPs invoking the Deemed Consent Rule, to her prejudice, and that is the consequence of the Council’s initial error which led to the Decision being quashed. The GPDO

[23]The GPDO is a “development order” for the purposes of section 58(1)(a) of the Town and Country Planning Act 1990 (“TCPA 1990”). The GPDO grants planning permission for certain types of development (subject to any conditions or limitations applicable to the class) described as “permitted development” and the classes of which are identified in Schedule 2. The relevant class in this case is Class R in the provisions of Part 3 of Schedule 2, which provides for change of use from “agricultural buildings to a flexible commercial use”. Those provisions include conditions that, before beginning the development, the developer will apply to the local planning authority for a determination of whether the prior approval of the authority will be required in relation to certain matters pertaining to the development.

[24]The application by IP1 sought the Council’s determination as to whether prior approval on certain matters was required on a proposed change of use of an agricultural building to the flexible commercial use of a ‘C1 – guesthouse’. As Swift J noted in his decision in Coventry, addressed below (he referred to the “somewhat awkward” drafting of the relevant provision in the GPDO) the general practice appears to be that applications for a determination as to whether prior approval is required are treated and determined as applications for that prior approval. I note that the differently worded provisions of the 1995 GPDO (specifically paragraph A3(7)(b) of Part 24 of Schedule 2) considered by the Court of Appeal in Nunn, which I also address below, made express provision for such an outcome.

[25]The application by IP1 for prior approval said the change of use was allowable under Class R. It stated the proposal complied with all the restrictions and conditions of class R, that the building has been used for agricultural purposes and was solely used as such on and before 3rd July 2012. The application said it had been in constant use for agricultural purposes primarily for storage for a number of years as a general all-purpose shed.

[26]Paragraph R.1 provides that development is not permitted by Class R if: “(a) the building was not used solely for an agricultural use as part of an established agricultural unit—(i) on 3rd July 2012;

(ii) in the case of a building which was in use before that date but was not in use on that date, when it was last in use, or

(iii) in the case of a building which was brought into use after 3rd July 2012, for a period of at least 10 years before the date development under Class R begins; (b) the cumulative floor space of buildings which have changed use under Class R within an established agricultural unit exceeds 21,000 square metres; […]” (i) on 3rd July 2012; (ii) in the case of a building which was in use before that date but was not in use on that date, when it was last in use, or (iii) in the case of a building which was brought into use after 3rd July 2012, for a period of at least 10 years before the date development under Class R begins;

[27]In his written submission on behalf of the Claimant, by reference to the decisions in Keenan v Woking Borough

[2017] EWCA Civ 438

, New World Payphones Ltd v Westminster City Council

[2019] EWCA Civ 2250

;

[2020] PTSR 888

, and R. (Smolas) v Herefordshire Council

[2021] EWHC 1663

, Mr Garbett described the provisions of paragraph R.1 as the “headline requirements”. The provisions provide definitional scope for the permitted development class. The local planning authority is obliged to determine whether the proposal falls within those headline requirements when it determines a prior approval application. If it does not fall within the definitional scope of the permitted development class, no prior approval right can accrue (irrespective of the authority’s decision).

[28]Paragraph X of Part 3 explains that “agricultural building” means a building used for agriculture “and which is so used for the purposes of a trade or business”, and that “established agricultural unit” in Class R means agricultural land occupied as a unit for the purposes of agriculture “on or before 3rd July 2012 or for 10 years before the date the development begins”.

[29]Paragraph R.3(1) or Part 3 provides that:

“Before changing the use of the site under Class R… the developer must”: “(a) where the cumulative floor space of the building or buildings which have changed use under Class R within an established agricultural unit does not exceed 150 square metres, provide the following information to the local planning authority - (i) the date the site will begin to be used for any of the flexible uses; (ii) the nature of the use or uses; and (iii) a plan indicating the site and which buildings have changed use; (b) where the cumulative floor space of the building or buildings which have changed use under Class R within an established agricultural unit exceeds 150 square metres, apply to the local planning authority for a determination as to whether the prior approval of the authority will be required as to - (i) transport and highways impacts of the development; (ii) noise impacts of the development; (iii) contamination risks on the site; and (iv) flooding risks on the site, and the provisions of paragraph W (prior approval) apply in relation to that application.” “(a) where the cumulative floor space of the building or buildings which have changed use under Class R within an established agricultural unit does not exceed 150 square metres, provide the following information to the local planning authority - (i) the date the site will begin to be used for any of the flexible uses; (ii) the nature of the use or uses; and (iii) a plan indicating the site and which buildings have changed use; (b) where the cumulative floor space of the building or buildings which have changed use under Class R within an established agricultural unit exceeds 150 square metres, apply to the local planning authority for a determination as to whether the prior approval of the authority will be required as to - (i) transport and highways impacts of the development; (ii) noise impacts of the development; (iii) contamination risks on the site; and (iv) flooding risks on the site, and the provisions of paragraph W (prior approval) apply in relation to that application.”

[30]The IPs’ application indicated that the proposed development fell within paragraph R.3(1)(b), as the cumulative floor space would exceed 150m2.

[31]Paragraph W(11) of Part 3 sets out the procedure for applications for prior approval under Part 3:

“The development must not begin before the occurrence of one of the following— (a) the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required; (b) the receipt by the applicant from the local planning authority of a written notice giving their prior approval; or (c) the expiry of 56 days following the date on which the application under sub-paragraph (2) was received by the local planning authority without the authority notifying the applicant as to whether prior approval is given or refused.” (a) the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required; (b) the receipt by the applicant from the local planning authority of a written notice giving their prior approval; or (c) the expiry of 56 days following the date on which the application under sub-paragraph (2) was received by the local planning authority without the authority notifying the applicant as to whether prior approval is given or refused.”

[32]The reference in paragraph W(11)(c) to “the application under sub-paragraph (2)” is a reference to these earlier provisions of paragraph W:

“(1) The following provisions apply where under this Part a developer is required to make an application to a local planning authority for a determination as to whether the prior approval of the authority will be required. (2) The application must be accompanied by— (a) ……..” (a) ……..”

[33]In Keenan, at [36], Lindblom LJ explained how a provision such as paragraph W(11) operates in practice (he was addressing an equivalent provision in the 1995 GPDO, with a 28-day period for the local planning authority’s determination as to whether or not prior approval was required).

[34]The decision in Coventry Gliding Club Ltd v Harborough District Council and another

[2020] EWHC 3388 (Admin)

is one of two referenced in paragraphs 7 and 8 of the Statement of Reasons in support of paragraph 4 of the January Order. As appears from the quote in the next paragraph, that case concerned an application for prior approval under Class Q but paragraph W(11), with its in-built timescales, applies there just as it does to a Class R application.

[35]In Coventry, Swift J said, at [7]:

“Paragraph W(11) may not expressly prescribe the period within which a Planning Authority must determine an application for prior approval, but the necessary consequence of paragraph W(11)(c) is clear: if the applicant has not been informed of the decision by the end of 56 days following the date on which the Planning Authority received his application, he is permitted to proceed with the development in accordance with the details set out in his application, and remains able to undertake that development throughout the three year period permitted under paragraph Q2(3).”

[36]The 56-day limit under paragraph W(11)(c) can be extended by written agreement between the local planning authority and the applicant, pursuant to article 7 GPDO: see Gluck v Secretary of State for Housing, Communities and Local Government [2020] EWCA Civ;

[2021] PTSR 1004

. As I explain below, the period for the re-determination ordered by paragraph 3 of the January Order has been successively extended by agreement between the Council and IP1.

[37]However, no such extension was agreed between the Council and IP1 before the Decision was made and, accordingly, the 56-day period under paragraph W(11)(c) applied. The Council made the Decision and notified IP1 within that period. IP1’s application was made on 5 March 2025. The Decision was made and notified to the IPs on 29 April 2026. The 56 days ended on 30 April 2025.

[38]The position is therefore not the same as that in Coventry. That case involved the straightforward application of the Deemed Consent Rule.

[39]In Coventry, Swift J had reached an earlier decision that the defendant council’s decision was unlawful. However, the day before his judgment to that effect was handed down it was revealed that, although the council’s decision on prior approval (for a change from Class Q use) had been taken on the last day of the relevant 56-day period, it was not communicated to the applicant until 3 days later by which time the period had obviously expired. The later decision was therefore concerned with the impact and consequences of the Deemed Consent Rule.

[40]The earlier decision of the Court of Appeal in R. (Nunn) v First Secretary of State

[2005] EWCA Civ 101

; [2005] Env LR 32 also arose out of the same situation as in Coventry (though it was a case where the local planning authority had decided to refuse prior approval rather than a case where a decision to grant it was later quashed by the court) and, therefore, also involved the straightforward application of the Deemed Consent Rule. In Nunn, the authority had notified its decision to refuse prior approval 8 days after the expiry of the relevant 56-day period under the 1995 version of the GPDO. The court was concerned with whether the claimant’s rights under

article 6 of the ECHR

had been infringed. Nunn is the other decision referenced in the Statement of Reasons in the January Order.

[41]In Nunn, the Court of Appeal found there had been a breach of article 6 because the council’s delay meant that no determination of the application for prior approval had been made on the claimant’s representations. However, it was the council’s failure in that case which had resulted in the breach, rather than a defect in the provisions of the GPDO. It was possible to operate the scheme in a Convention-compliant way. The result, therefore, was not that the GPDO should be interpreted (pursuant to section 3 of the HRA) in a manner that would have the effect of undoing the applicant’s rights and forcing the applicant to remove the telecoms mast which it has had a right to erect. Instead, the claimant’s remedy was only against the local planning authority and was for damages under either the HRA or through the Local Ombudsman scheme.

[42]As already noted, the Claimant’s position is that the later quashing of the Decision, which was notified to the IPs in accordance with paragraph W(11)(c) of the GPDO, puts the IPs in the same position as the applicant in Coventry. Addressing the additional remedies of a declaration and damages, the Claimant’s Statement of Facts and Grounds says:

“50. The remedies claimed at paras. 44(a) and (b) above are a rarity in the context of a Planning Court judicial review case, but similar issues have been encountered twice before in the cases of R (Nunn) v. First Secretary of State [2005] Env LR 32 and Coventry Gliding Club Ltd v Harborough District Council and another [2020] EWHC 3388 (Admin).”

[43]As I have explained, the facts in Nunn and Coventry called for a straightforward application of what (for the purposes of comparing those in Nunn) is now paragraph W(11)(c). The facts of the present case prompt the basic question as to whether they do truly raise similar issues for the purposes of the Deemed Consent Rule.

[44]The obiter remarks of Swift J in Coventry do not provide much encouragement for an argument that a case which involves a decision being notified to the applicant within the 56-day period (albeit a flawed decision to the extent it is later quashed) also falls within the Deemed Consent Rule. The judge said this in a footnote (fn. 2) to paragraph 17 of his judgment, where he relied upon the decision of the Court of Appeal in Nunn in concluding there was no basis on which to conclude that paragraph W(11) is incompatible with the claimant’s rights under the HRA:

“The facts of this case do not require a decision on the effect of paragraph W(11) in a situation where a decision on an application for prior approval has been taken and communicated within the times permitted, but is then challenged and quashed. Before it became apparent in this case that the Council had not communicated its decision to Mr Garner in the time allowed, the Council had stated that its submission would be that where a decision, properly made and communicated, was quashed the effect of paragraph W(11) was that the right to develop became unconditional because the consequence of the quashing order was that an effective decision had neither been made nor communicated within the 56 day permitted period. Even absent section 3 of the Human Rights Act, I have significant doubts that that conclusion is correct. But if those doubts are misplaced, there would remain a serious issue as to whether such a state of affairs was consistent with the Convention rights of the person who had successfully challenged the prior approval decision. In this instance, however, this matter does not need to be resolved.”

Analysis (1). The Decision cannot be airbrushed from history

[45]I do not find it at all surprising that Swift J in Coventry expressed doubt about what has become the basic predicate in this case so far as the grant of additional remedies is concerned.

[46]It is one thing to recognise that paragraph W(11) of the GPDO operates in the event of inaction by the planning authority (i.e. the lack of a timely notification under paragraph W(11)(c)). In that situation, the applicant for prior approval benefits from the Deemed Consent Rule even where any timely decision by the local planning authority would have been a refusal (as in Nunn) and, as Coventry illustrates, also where a decision (be it the grant or refusal of prior approval) is actually taken within the 56-day period but is not notified to the applicant before its expiry.

[47]However, it is quite another thing to say that the Deemed Consent Rule applies when the authority does notify the applicant within time of a decision which is later annulled. I recognise that, as shorthand, I have deployed that definitional term - the ‘Deemed Consent Rule’ - in this judgment; and that paragraph W(11) is not expressed in terms of “deeming” something to be the case, as opposed to terms providing for the lifting of an embargo upon the commencement of the development. However, making allowance for that, and speaking generally in the legal context, the taking of timely action usually leaves no room for deeming a certain state of affairs to exist as if none had been taken. On the face of it, and giving the words of paragraph W(11)(b), in their context, their plain and ordinary meaning, the Council did give IP1 notice of prior approval.

[48]Nevertheless, the Claimant says that the effect of the Decision being quashed is that it is a nullity and, therefore, should be treated as never having been made. In other words, there was no timely or even provisionally effective action by the Council which displaces the Deemed Consent Rule.

[49]In my judgment, the plain language of paragraph W(11) of the GPDO (without the need for much further enlightenment from the authorities relied upon by the parties, including the obiter dicta in Coventry) shows that the facts of the present case cannot be brought within the scope of paragraph W(11)(c).

[50]Paragraph W(11) sets out three alternative events (each an “occurrence”) which lift the embargo upon the commencement of the development in respect of which prior approval is sought. The third, the Deemed Consent Rule, is expressed in language which makes it a true alternative to the second of them - the giving of such approval under paragraph W(11)(b) – and it sets a time limit for notifying such approval (or refusal - cf. Nunn) “without” which the embargo is lifted. Although the point emerges less clearly from the drafting than it did from the language of the 1995 GPDO considered in Nunn (see Nunn at [3] for the provisions of A3(7) of the 1995 GPDO), the Deemed Consent Rule is also to be treated as an alternative to the first alternative under paragraph W(11)(a) which is that notification that prior approval is not required. The period of 56 days under paragraph W(11)(c) begins to run from “the date on which the application under sub-paragraph (2) was received by the local planning authority”. That is a reference back to paragraph W(2). As set out above, paragraph W(2) in fact relates to an application “for a determination as to whether the prior approval of the authority will be required” (see the observation Coventry noted in paragraph 24 above as to how in practice, including in the present case, these are dealt with by local planning authorities). The Deemed Consent Rule is therefore also an alternative to paragraph W(11)(a) (just as paragraph W(11)(b) plainly is) with the same effect of setting a time limit for the local planning authority to decide and notify that prior approval is not required. If it does not notify the applicant within 56-days then, again, the “occurrence” in paragraph W(11)(c) will instead take effect.

[51]Ms Parekh for the SoS referred to the first instance decision of Holgate J (as he then was) in Gluck:

[2020] EWHC 161 (Admin)

;

[2020] PTSR 834

. The case concerned different time limits under article 7 of the GPDO and called for an analysis of the alternative prior approval time periods within that provision and (as already noted) the focus was upon the ability to extend any or all of them by written agreement. The judge rejected the claimant’s argument that the default 8 week decision period under article 7(b) could not be extended by agreement. He said, at [72]:

“I do not consider that the claimant’s interpretation of the legislation can be supported by a purposive approach to the language used. Plainly the avoidance of delay in decision-making by LPAs is an important objective. But sound decision-making on matters of public interest is no less important. That needs to be based upon adequate information from an applicant and necessary consultation. Some of the issues involved may be of a highly technical nature.

(b) ”

[52]In my judgment, and as Ms Parekh submitted, reading paragraph W(11)(a)-(c) as containing true alternatives means the provision as a whole strikes a balance between allowing local planning authorities sufficient time to review applications (including ensuring sufficient time to consult local communities) while at the same time ensuring that development deemed appropriate in principle by Parliament is not held up by delays within those planning authorities. The objective of avoiding delays in development is specifically met by the deeming provision in paragraph W(11)(c), while W(11)(a)-(b) are geared towards the objective of considered decision-making by local planning authorities.

[53]The present case involved the Council giving consent under paragraph W(11)(b). The Council did notify IP1 of the decision to grant prior approval within 56 days.

[54]How then can IP1’s application be analysed as being caught by the alternative Deemed Consent Rule under paragraph W(11)(c)? The answer, the Claimant says, lies in the subsequent quashing of the Decision.

[55]As I summarised the point at the hearing, this approach requires not only the Decision but also its notification to the IPs on 29 April 2025 - i.e. the relevant event under paragraph W(11)(b) - to be airbrushed from history. That immediately struck me as ambitious when the Claimant’s answer rests upon the Decision being null and void through the application of the doctrine of ultra vires. An ultra vires act or decision will be legally ineffective but it does not necessarily follow that “it” (as an event, it obviously occurred) can be assumed never to have been taken or made. The fact that a decision made under paragraph W(11)(b) proves not to be “sound” (the language in Gluck) and is later quashed, does not mean that it has not been taken expeditiously (with an eye on the next limb – W(11)(c) – aimed at the “avoidance of delay”) or that the fact of its receipt by IP1 can simply be overlooked.

[56]In other planning law contexts, a quashed decision may be a material consideration for the purposes of a later one and the application of the consistency principle to decision making: see R. (Davison) v Elmbridge Borough Council [2019 EWHC 1409 (Admin); [2020] 1 P.&C.R. 1, at [55]-[56]. The quashed decision is obviously incapable of having any legal effect on the rights or duties of the parties, and the decision maker starts with a clean sheet in making the later one, but it does not necessarily follow that the quashed decision cannot as a matter of law be a material consideration for the purposes of that later decision. Whether or not the quashed decision is a material consideration is a fact-specific assessment in the particular case. It may be that not treating it as a material consideration will render the later decision unlawful if no reasonable authority could have failed to take it into account.

[57]In my judgment, the facts of the present case plainly require the court to remain cognisant of the Decision. I can see no proper basis in this case for proceeding as if the event of its receipt by IP1 on 29 April 2025 never happened for the purposes of paragraph W(11)(b), so that this became a paragraph W(11)(c) case a day or so later. In my judgment, the doctrine of ultra vires does not extend beyond saying the Decision has no legal effect to the further conclusion that it should also be treated as never having been received by IP1.

[58]That is obvious from the fact that the Decision, as notified, was not quashed until the sealing of the January Order by which point the 56-day period for the purposes of the Deemed Consent Rule had long since passed. Even if the earlier date of 6 November 2025 (when the Claimant and the Council agreed it should be quashed) is taken, the relevant date for the purposes of the Deemed Consent Rule having any impact occurred some 6 months prior to that. For the entirety of that intervening period, therefore, this was a case involving effective notification of consent for the purposes of paragraph W(11)(b). So much is obvious from the fact that the Claimant brought a claim for judicial review to challenge it. Had she not done so and been successful in her claim then the Decision would have remained entirely effective because it was notified before what would otherwise have been the relevant date for the Deemed Consent Rule.

[59]The position is quite different from that in Coventry where events after the expiry of the 56-day period (including the court’s earlier decision to quash the grant of prior approval given in ignorance that the Deemed Consent Rule had in fact already operated to undermine the decision) proved to be irrelevant because of the failure to notify the approval decision within the 56-day period. The difference is one between action (this case) and omission (Coventry). The post-expiry events in this case have significance because the Council’s notification was timely.

[60]The Decision was, therefore, one which fell within paragraph W(11)(b). It cannot, through an airbrushing of its notification on 29 April 2025 from the history of this case, be sensibly retrofitted into paragraph W(11)(c) and its long since passed expiry date. Nor, as I explain below, do the other terms of the January Order (beyond the quashing of the Decision) indicate that it has been. The basis and terms of the January Order (read as a whole) confirm that the relevant event (the paragraph W(11)(b) notification) took place on 29 April 2025 so as to pre-empt and displace, once and for all, the date of 30 April 2025 having any meaning under paragraph W(11)(c).

[61]The Claimant’s case for such retrofitting, on the basis that doctrine of ultra vires doctrine extends to approaching paragraph W(11) as if the fact of the timely notification of the Decision never took place, is also at odds with decisions of the House of Lords and Supreme Court upon which Ms Chalaby and Ms Parekh relied.

[62]In Boddington v British Transport Police

[1999] 2 AC 143

the House of Lords addressed the principle that a person does not commit a crime by infringing a byelaw which is ultra vires and unlawful and whether the accused was able to raise its alleged invalidity as a defence in criminal proceedings. Although he preferred to express no conclusion on the point, Lord Browne-Wilkinson said the following, at p. 164A-D (with counsel’s emphasis):

“I adhere to my view that the juristic basis of judicial review is the doctrine of ultra vires. But I am far from satisfied that an ultra vires act is incapable of having any legal consequence during the period between the doing of that act and the recognition of its invalidity by the court. During that period people will have regulated their lives on the basis that the act is valid. The subsequent recognition of its invalidity cannot rewrite history as to all the other matters done in the meantime in reliance on its validity. The status of an unlawful act during the period before it is quashed is a matter of great contention and of great difficulty: see Percy v. Hall [1997] Q.B. 924, 950-952, per Schiemann L.J. and the authorities there referred to; de Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th ed. (1995), paras. 5.044-5.048 and Calvin v. Carr [1980] A.C. 574, 589-590”

[63]In R. v Soneji

[2005] UKHL 49

;

[2006] 1 AC 340

, the House of Lords addressed the need, in the case of a failure to comply with a statutory requirement, to determine whether the legislature can fairly be taken to have intended non-compliance to result in total invalidity of the action. The case concerned non-compliance with rules of postponement of confiscation in the context of a requirement that any confiscation order made under Criminal Justice Act 1988, s 72A(4) must be made within six months of the date of conviction save in exceptional circumstances. Lord Steyn, at [13], referred to the court’s adoption of a more flexible approach of focussing intensely on the consequences of non-compliance, and posing the question, taking into account those consequences, whether Parliament intended the outcome to be total invalidity.

[64]The decision of the Supreme Court in R. (Majera) v Home Secretary

[2021] UKSC 46

concerned the question of whether a defective bail order was to be treated as having no legal effect so that the Home Secretary could impose restrictions on the application which had not been imposed by the First-tier Tribunal when making the order. The Court of Appeal had based its decision that, being defective, the bail order did not prevent the Home Secretary from doing so on the characterisation of invalid administrative acts and decisions as being null and void. Lord Reed PSC said that approach was inapposite to an order of a court or tribunal such as the First-tier tribunal: there is a duty to obey an order unless and until it has been set aside or varied. However, he observed that the Court of Appeal’s approach was too simplistic as (at [27]) “[a]lthough judges have commonly used expressions such as “null” and “void” to describe unlawful administrative acts and decisions, it has nevertheless been recognised that the notion that such acts and decisions are utterly destitute of legal effect, as if they had never existed at all, is subject to important qualifications.”

[65]Lord Reed, at [31]-[32], referred to the decision in R. v Soneji as an example of a situation where treating a legally defective decision as a nullity would be inconsistent with the legislation under which it was made. He also referred to the need for legal certainty and, in the field of administrative law, the need to avoid the logic of the concepts of voidness and nullity overriding “important values underpinning the court’s supervisory jurisdiction, such as the public interest in legal certainty, orderly administration, and respect for the rule of law.”

[66]In Majera, at [29], Lord Reed made the point which leaps out from brief reflection upon the fact that in this case it was necessary for the Claimant first to successfully challenge the Decision so as now to be in the position of even contemplating a claim to additional remedies. He said:

“Accordingly, if an unlawful administrative act or decision is not challenged before a court of competent jurisdiction, or if permission to bring an application for judicial review is refused, the act or decision will remain in effect. Equally, even if an unlawful act or decision is challenged before a court of competent jurisdiction, the court may decline to grant relief in the exercise of its discretion, or for a reason unrelated to the validity of the act or decision, such as a lack of standing (as in Durayappah v Fernando [1967] 2 AC 337) or an ouster clause (as in Smith v East Elloe). In that event, the act or decision will again remain in effect. An unlawful act or decision cannot therefore be described as void independently of, or prior to, the court’s intervention.”

[67]For the reasons set out in paragraphs 57 to 60 above, the notification of the Decision was not without any legal effect. This is simply not a Coventry type case. The Deemed Consent Rule is irrelevant.

[68]In the third part of my analysis below I note that two elements of the January Order, reflecting the court’s intervention, appear to be contradictory of one another but I consider the remitting of IP1’s application for the Council’s re-determination undermines the Claimant’s position in relation to the Deemed Consent Rule. Having regard to the way Lord Reed expressed himself in Majera, at [32], I think it can be said that the Claimant has probably gone too far in the application of the logic of voidness to the point where the terms of paragraph 3 of the January Order (as an expression of the rule of law) are effectively ignored. (2). A purposive and/or HRA-compliant interpretation?

[69]In paragraph 12 above I have referred to the Council’s pre-action letter to the effect that the Claimant’s concerns about the operation of the Deemed Consent Rule were contrary to “a purposive or Human Rights Act compliant interpretation” of paragraph W(11).

[70]In relation to the principles of purposive construction of legislation (including secondary legislation such as the GPDO) both Ms Chalaby and Ms Parekh referred to Bennion, Bailey and Norbury on Statutory Interpretation (8th ed., 2020) and a number of authorities which address the approach to be adopted in the exercise of interpreting a particular legislative provision over the meaning of which there may be some doubt. When the words appear in a statute, the essential task is to ascertain the meaning of the words used in the light of their context and the purpose of the statutory provision: see R (N3) v Secretary of State for the Home Department

[2025] UKSC 6

;

[2025] AC 1473

, at [62] (per Lord Sales and Lord Stephens). The same approach applies to the interpretation of secondary legislation: see Tidal Lagoon (Swansea Bay) Plc v Secretary of State

[2022] EWCA Civ 1579

[2023] PTSR 492

, at [30]-[31] (per Sir Geoffrey Vos MR, Sir Keith Lindblom SPT and Stuart-Smith LJ).

[71]In the first instance decision in Gluck (see paragraph 51 above) Holgate J adopted a purposive approach in construing article 7 of the GPDO to reach the conclusion that what was otherwise the 8 week long-stop under that provision could be extended by agreement.

[72]When interpreting the language of legislation in a way that best gives effect to its purpose, so far as it can, the court may find its approach accords with a grammatical construction or requires a strained construction: see Bennion op. cit. at para. 12.2. Counsel referred to the decision of the House of Lords in R. (Quintavalle) v Secretary of State

[2003] UKHL 13

;

[2003] 2 AC 687

where Lord Bingham, at [8], emphasised that it may be necessary to depart from a confined or literal approach in identifying the statutory purpose. See also the decision of the Supreme Court in R. (Fylde Coast Farms Ltd) v Fylde BC

[2021] UKSC 18

;

[2021] 1 WLR 2794

, at [6].

[73]The court approaches this exercise adopting the presumption of a rational, reasonable and informed legislature: see Bennion at paragraph 11.6. Ms Parekh referred to a further interpretative principle which is that the courts will therefore not interpret a statute so as to produce an absurd result, unless clearly constrained to do so by the words Parliament has used: see R v McCool [2018]

[2018] UKSC 23

; 1 WLR 2431, at [23]-[25] (per Lord Kerr).

[74]As in Soneji, the court in McCool was concerned with a challenge to a confiscation order but the question was which confiscation regime applied rather than strict compliance with it. That involved interpretation of transitional provisions in the secondary legislation made under the Proceeds of Crime Act 2002. Lord Kerr said Parliament cannot have intended that a potentially extremely wide range of post-2003 offences would be excluded from the ambit of the 2002 Act as “[t]hat would produce a result which would be plainly at odds with the entire scheme of the legislation.”

[75]As explained in Bennion, at paragraph 13.1:

“The court seeks to avoid a construction that produces an absurd result, since this is unlikely to have been intended by the legislature. Here, the courts give a very wide meaning to the concept of ‘absurdity’, using it to include virtually any result which is impossible, unworkable or impracticable, inconvenient, anomalous or illogical, futile or pointless, artificial, or productive of a disproportionate counter-mischief.”

[76]In my judgment it is not necessary to invoke principles of purposive construction to reach the conclusion that paragraph W(11) of the GPDO provides for three distinct alternatives and if either one of the first two occurs, through the applicant’s receipt of a written notice, then there is no room for saying there has been no notification of a decision for the purposes of paragraph W(11)(c). I have said that, between them, the three alternatives do serve the two objectives identified by Holgate J in Gluck but they would, on the plain language of the provision, still be true alternatives even if, somehow, they did not.

[77]Paragraph W(11)(b) does notrefer to “the receipt by the applicant from the local planning authority of a written notice of a valid decision giving their prior approval”. The Claimant’s argument amounts to suggesting that it should be read that way and that the underlined words should be imported. Just as in a contractual context it would make no sense to talk about the court construing an implied term (as opposed to perhaps importing one whose basis and content meet the business efficacy and/or obviousness test) this is not what the purposive approach to legislative interpretation is about.

[78]A purposive construction requires the court to “re-examine the words” if giving them their ordinary meaning brings about extraordinary results which cannot have been intended: see Re British Concrete Pipe Association

[1983] 1 All ER 203

, at p. 205d (per Sir John Donaldson MR). The court does not need to resort to notions of purposive construction of legislation to counter or qualify the meaning of words that are absent from it.

[79]For the reasons explained within the first part of my analysis above, reading those words into paragraph W(11)(b) would be at odds with the clear and ordinary meaning of W(11) read as a whole. Indeed, the unworkability and artificiality of trying to retrofit the facts of this case into paragraph W(11)(c) demonstrate that this would be at odds with a purposive construction of the provision. In the third part of my analysis below, I explain how paragraph 3 of the January Order (if not its paragraph 4) has already countered what would be the effect of this (per Bennion quoted in in paragraph 75 above) “absurd” consequence. For the purposes of the twin objectives identified by Holgate J in Gluck, the parties have agreed that further sound decision-making upon IP1’s application by the Council is required.

[80]Had the language of paragraph W(11) been more ambiguous, over the interplay of the alternatives within it, than I have found it to be then I would have adopted a purposive construction in concluding that the ex-post facto quashing of the Decision cannot bring it within the Deemed Consent Rule. As I explain below, it appears to me that paragraph 3 of the January Order can only be justified on that basis. It is not of course for litigants to decide what legislation means but, in a significant respect, the Claimant and the Council (and, as I explain below, IP1 too) have themselves continued to recognise the legislative aim of sound decision-making even if that comes at the cost of further time.

[81]As anticipated by the Council’s letter dated 28 May 2025, Ms Chalaby and Ms Parekh also referred to the provisions of section 3 of the HRA should it be necessary to rely upon them to avoid the Deemed Consent Rule applying to this case.

[82]Section 3 of the HRA provides as follows:

“3. Interpretation of legislation. (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. (2) This section— (a) applies to primary legislation and subordinate legislation whenever enacted; (b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and (c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.”

[83]The interpretive obligation under section 3 (“must be read”) requires the court first to ascertain whether, without recourse to the section, there would be a breach of the ECHR and that task is approached by interpreting the allegedly incompatible provision in accordance with ordinary principles of construction: see Ghaidan v Godin-Mendoza

[2004] UKHL 30

;

[2004] 2 AC 557

, at [29]-[33] (per Lord Nicholls), [60] (per Lord Millett) and [107] per Lord Rodger. If there would be breach of a Convention right then the “extended interpretative function” (per Lord Nicholls) under section 3(1) is engaged. It obliges the court to “give an abnormal construction to the statutory language and one which cannot be achieved by resort to standard principles and presumptions” (per Lord Millett).

[84]The obligation under section 3(1) is therefore “a strong one” (see the references in the judgment of Lord Steyn in Ghaidan, at [47]-[48], to earlier authority illustrating its strength) which goes much further than conventional methods of statutory interpretation. It does not depend on there being ambiguity in the language, in the sense of the words being capable of two different meanings, and it can require a court to read in words which change the meaning of the enacted legislation. The limitations upon the obligation are that the court cannot adopt a meaning which goes against the grain of the legislation (i.e. which is inconsistent with a fundamental feature of the legislation) or make decisions for which it is not equipped: see Ghaidan at [30]-[33], [49], [67]-[68] and [109] and Smith v Lancashire Hospitals and others

[2017] EWCA Civ 1916

at [96] (per Sir Terence Etherton MR). The exercise is one of interpretation rather than an impermissible amendment which goes against the grain of the legislation. In undertaking it, it is not necessary for the court to identify a precise form of words for the section 3 reinterpretation: Thomas v Bridgend CBC

[2011] EWCA Civ 862

;

[2012] QB 512

, at [68] (per Carnwath LJ).

[85]I have explained above that I do not find it necessary even to invoke the principles of purposive construction to reach the conclusion that the Deemed Consent Rule has no application on the facts of the present case. It is the Claimant’s case which requires words to be read into paragraph W(11)(b) (see paragraph 77 above) to support the opposite conclusion. In my judgment, whether or not a purposive approach is adopted, the obligation under section 3 does not need to be engaged to give paragraph W(11) a meaning that its language does not otherwise support.

[86]I have mentioned in the introductory section of this judgment the Claimant’s invitation to the court to consider making a declaration of incompatibility pursuant to section 4 of the HRA.

[87]For present purposes, section 4 provides: “4. Declaration of incompatibility. […] (3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right. (4) If the court is satisfied—(a) that the provision is incompatible with a Convention right, and

(b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility, it may make a declaration of that incompatibility. […].” (a) that the provision is incompatible with a Convention right, and (b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility,

[88]Resort to section 4 “must always be an exceptional course”: see Ghaidan at [50]. The provisions of section 4(4) make clear that a declaration of incompatibility may only be made where the court is satisfied that the provision is incompatible with a Convention right and that the relevant primary legislation prevents removal of that incompatibility. Where incompatible primary legislation does not in and of itself require the incompatible provisions of the subordinate legislation, no declaration under section 4 can be made: see R. (T) v Chief Constable of Greater Manchester Police

[2014] UKSC 35

;

[2015] AC 49

, at [151] (per Lord Reed). Where it is possible to do so, a provision of subordinate legislation which results in a breach of a Convention right must be disregarded: see, e.g., RR v Secretary of State for Work and Pensions

[2019] UKSC 52

at [28]-[30] (per Lady Hale, where she refers to the distinction drawn between primary and subordinate legislation, in this respect, by the terms section 6 of the HRA).

[89]In this case, the first condition is not satisfied when the court’s interpretative obligation under section 3 of the HRA is not even engaged. Neither is the second condition satisfied. The GPDO is a “development order” made in exercise of a power under the TCPA 1990. The Act does not in and of itself require the incompatible provisions of the subordinate legislation. The point was recognised in the Claimant’s own written submissions: “…… the Claimant recognises that if the Court decides it lacks the power to make such a declaration this is likely to be because the relevant primary legislation (ss.58–60 TCPA 1990) does not require the automatic accrual of permission nor bar a Convention-compliant interpretation, i.e. the s.4(4) HRA test is not met.” (3). What does the January Order mean?

[90]In my judgment, the terms of the January Order also distinguish the present case from Nunn so far as the grant of any additional remedies is concerned.

[91]Paragraph 3 of the January Order provides that IP1’s application would be remitted to the Council for re-determination. The order was made by consent and the court was not required to engage in a substantive determination of the Claimant’s challenge to the Decision in a way that would have prompted full reflection upon the consequences of a decision to quash it. It is obvious from what I have said above (giving my reasons for distinguishing the cases of Nunn and Coventry mentioned in the Statement of Reasons in support of the paragraph addressing potential additional remedies) that I consider it highly unlikely that, following a substantive determination, the court would have been persuaded to include paragraph 4 of the order alongside paragraph 3. Doing so would implicitly question the very basis and purpose of paragraph 3.

[92]Nevertheless, both paragraphs 3 and 4 appear together in the order as made and I must consider the impact of the former upon the latter. Although IP1 did not sign up to its terms, the Council agreed to treat his application as being remitted for re-determination and the question is one of discerning the meaning and effect of the order that it should do so (i.e. its impact). This is not really a case of discerning the meaning and impact of the order by reference to considered reasons given by the court. The court adopted the parties’ Statement of Reasons in support of paragraph 4 of the order (see paragraph 13 above) and my analysis shows them to be unpersuasive in their conclusion that “these issues [i.e. those raised in Nunn and Coventry] are directly relevant on the specific facts of the present case, and which may therefore justify the granting of additional remedies by the, including a Declaration.” The greater focus should therefore be upon the impact of paragraph 3.

[93]The Council (if not the SoS) had adopted those reasons in support of paragraph 4 and I think Ms Chalaby and Ms Parekh had probably not anticipated my initial questioning aimed at establishing how paragraph 4 was to be reconciled with paragraph 3. Their excellent and otherwise comprehensive written submissions had not focused directly upon the principles which the court applies when discerning the meaning and effect of an order it has previously made.

[94]Those principles were set out by Phillips LJ in the recent decision of the Court of Appeal in GFH Capital Ltd v Haigh

[2024] EWCA CIV 65

, at [34]-[35], referring to the Supreme Court decision in Sans Souci Ltd v VRL Services Ltd

[2012] UKPC 6

, at [13] (per Lord Sumption) and Pan Petroleum AJE Ltd v Yinka Folawiyo Petroleum Company Ltd

[2017] EWCA Civ 1525

, at [41] (per Flaux LJ). The interpretation of a court order is a single coherent process which depends on what the language of the order would convey, in the circumstances in which the court made it, so far as those circumstances were before the Court and obvious to the parties. As with a written agreement (where the relevant principles extend further into objective consideration of the commercial implications of rival interpretations) the words are to be given their natural and ordinary meaning and are to be construed in their context. The interpretation of an order may be critically affected by knowing what was considered to be the issue it was supposed to resolve.

[95]IP1 was not a party to the agreement that led to the making of the January Order but he is a party to the proceedings in which the order was made. It is true that paragraph 3 was not expressed in language which directed IP1 to take action (whether or not by a certain date) in remitting his application to the Council. Neither did it expressly refer to paragraph W(11) (or paragraph W(2)). However, paragraph 3 makes no sense unless the provisions of paragraph W(11) are to be re-engaged. It is on that basis that, under the January Order, IP1 becomes subject once again to the embargo in the opening words of paragraph W(11): “The development must not begin before the occurrence of one of the following ….”.

[96]The effect of paragraph 3 of the January Order is clear. The Council will have a further 56 days from the date when IP1’s application is remitted (or such longer period as may be agreed with IP1 in accordance with the decision in Gluck) to make and notify him of its decision. It follows that this limb of the order leaves no place for concluding that the Deemed Consent Rule may have been triggered on 30 April 2025. In my judgment, any assumption within paragraph 4 of the January Order that it might then have been triggered is unfounded.

[97]It is also clear that IP1 reads the order the same way. As noted above, in accordance with Gluck, he has agreed with the Council successive extensions of the time limit under paragraph W(11). This can only be on the basis that the paragraph W(11) has been re-engaged so that the passing of the date of 30 April 2025 (for the purposes of the Deemed Consent Rule) is of no consequence. This is what the language of paragraph 3 (in the circumstances in which the court made the order and which were obvious to IP1) conveys to him.

[98]Shortly before the hearing, I was provided with a copy of an email dated 8 July 2026 by which the Council responded to the Claimant’s request for further information in relation to the re-determination of the application in accordance with paragraph 3 of the Order dated 6 November 2025. The Council’s email said (with the Claimant’s request in bold in the original):

“1. Written time extensions. a. Please give details of any written agreements to extend time for redetermination of the application: e.g. dates on which these agreements were concluded, and the length of the time extension that was granted. An initial extension was granted until 13th March 2026, which was confirmed by email from the applicant's agent dated 3rd March 2026. A further extension was subsequently granted until 27th May 2026, confirmed by email from the applicant's agent dated 10th March 2026. A further extension of time was granted until Tuesday 18th August 2026, confirmed by email from the applicant's agent dated 11th May 2026. b. When does the current extension of time run out? The current extension expires on Tuesday 18th August 2026. 2. Additional Information a. Has the Council requested any additional information from the applicant pursuant to paragraph W(9) GPDO. The council has requested additional information from the applicant through its agent. The following information has been requested: -evidence that the building has been used for agriculture for the purposes of a trade or business -details of the extent of the established agricultural unit -details, including floor area, of any floorspace which has changed use under Class R within the established agricultural unit. This was requested by email on 4th June 2025 and again on 4th March 2026. We have not received any new material to date. b. Does the Council intend to make any such request before its final redetermination? As above. 3. Public Consultation a. How does the Council intend to discharge its public consultation duties in respect of any new material that is received. The LPA intends to publish any new material received on the planning portal in advance of re-determination.”

The following information has been requested:

[99]The current extension of time for the purposes of paragraph W(11)(c) therefore expires on 18 August 2026. Ms Chalaby said that, if the timing of this judgment required it, then no doubt a fourth extension will be agreed between the Council and IP1.

[100]In her submissions relating to

article 6 of the ECHR

(addressed next) the Claimant says she was an entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. She says “there must be a further opportunity for the [Council] to assess the evidence relating to the headline requirements, and to consider the Claimant’s representations in a manner that is Article 6-compliant.” Paragraph 3 of the January Order provides for that opportunity.

[101]The terms of the January Order were proposed by the Claimant. So far as the timing of the Council’s re-determination is concerned, she must be taken to have known that the 56-day period might be extended in accordance with Gluck. In her oral submissions, the Claimant said she was concerned about the delay since November 2025 when she agreed the terms of the January Order with the Council. However, the Claimant’s pursuit of additional remedies (on the conflicting premise that the Deemed Consent Rule has been triggered) has obviously had the effect of extending the timescale for the Council’s re-determination. The Claimant said that the Council could have proceeded with the re-determination under paragraph 3 of the January Order without awaiting the outcome of the claim to additional remedies under paragraph 4. I do not accept that when (see paragraph 96 above) it is really a case of one or the other. (4). Class R ‘headline requirements’ met?

[102]There is one final reason why this is not a case that requires any additional remedy to be granted and it arises out of the decisions referred to in paragraph 27 above. Ms Chalaby and Ms Parekh each relied upon this reason. It chimes with what I have said above about the effect of paragraph 3 of the January Order, particularly having regard to paragraph 2 of the Statement of Reasons explaining the basis on which the Decision was set aside (see paragraphs 5 and 10 above).

[103]It is the Claimant’s position that IP1’s application fails to meet the so-called headline requirements set by the definitional criteria of a Class R change of use: see paragraph 26 above. Under paragraph W(10) of the GPDO the Council must take into account the Claimant’s representations. On its re-determination of IP1’s application, the Council is bound to consider and determine whether it meets the headline requirements: see New World Payphones at [49(i)] (per Hickinbottom LJ).

[104]If the Claimant is correct in her objection that the headline requirements are not met then, as counsel correctly submitted, that itself provides an answer to her claim for additional remedies. The decision in Keenan, at [32]-[39], shows that if the Class R definitional criteria are not met, then IP1’s application cannot benefit from the GPDO’s grant (subject to conditions) of planning permission as if it was such a permitted development. In that situation, whatever the Council decides and irrespective of any future operation of the Deemed Consent Rule, no permitted development rights can accrue and the decision cannot be the cause of harm to the Claimant requiring remedy. The point made by Lindblom LJ in Keenan, at [41], highlights why any triggering of the Deemed Consent Rule on 30 April 2025 would not, on the Claimant’s position in relation to the headline requirements, have caused such harm. A development outside the range of permitted development rights conferred by the GPDO cannot be “deemed to have been granted planning permission simply because the local planning authority had not responded within [56] days to an application for a determination as to whether its “prior approval” of certain details would be required.”

[105]There is certainly no basis for asking the court to assume the contrary for the purposes of this judgment about additional remedies when the Deemed Consent Rule has not been triggered. Whether or not IP1’s application meets the headline requirements is a matter of planning judgment that requires investigation of information about the facts of the IP2’s landholdings and the planning history. These are matters for the Council on its re-determination under paragraph 3 of the January Order. They are not matters for the court (certainly not at this stage) and the above analysis in relation to the order’s effect shows that it is paragraph 3 which operates to displace paragraph 4, not the other way around. (5).

Article 6 of the ECHR

[106]The claim to alternative remedies is made by reference to the HRA. It is a necessary precursor to any of the HRA-based remedies that, in the first instance, there is a breach of one or more “Convention rights”: see section 1(1) of the HRA. The Claimant’s case that there is such a breach is predicated upon IP1’s application benefiting from the Deemed Consent Rule. She says if the development can proceed notwithstanding the quashing order, then that would amount to a breach of the Claimant’s

article 6 ECHR

right to a fair trial and she would be deprived of an effective remedy.

[107]For the reasons explained above the basic premise of the argument is absent: IP1 does not benefit from the Deemed Consent Rule. Nevertheless, for completeness, I deal with the other aspects of the article 6 point that were addressed in submissions with particular focus upon the Claimant’s claim to damages under section 8 of the HRA.

[108]On the hypothesis that the operation of the Deemed Consent Rule may infringe article 6, the Secretary of State did not suggest any conclusions as to whether the Claimant was entitled to a remedy under section 8 of the HRA. On his behalf of as an intervening party, Ms Parekh focused instead on the correct interpretation of the legislation.

[109]

Article 6(1) of the ECHR

, headed ‘Right to a fair trial’, relevantly provides:

“In the determination of his civil rights and obligations […], everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law [...]”

[110]The provisions of section 6 of the HRA relevant to this case are:

“6. Acts of public authorities. (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. (2) Subsection (1) does not apply to an act if— (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions. […] (6) “An act” includes a failure to act […].”

[111]Section 7 of the HRA addresses the question of standing to sue for damages under section 6(1). The material parts of the section are: “7. Proceedings.(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may— (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act.

(2) In subsection (1)(a) “appropriate court or tribunal” means such court or tribunal as may be determined in accordance with rules; and proceedings against an authority include a counterclaim or similar proceeding.

(3) If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act. […] (7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of

Article 34 of the Convention

if proceedings were brought in the European Court of Human Rights in respect of that act.” (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings,

[112]

Article 34 of the ECHR

(headed ‘Individual applications’) provides that the European Court of Human Rights may may receive applications from “any person, non-governmental organisation or group of individuals claiming to be the victim of a violation” of a Convention right by a Contracting Party.

[113]In relation to remedies, section 8 of the HRA relevantly provides:

“8. Judicial remedies. (1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate. […] (3) No award of damages is to be made unless, taking account of all the circumstances of the case, including— (a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and (b) the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made. (4) In determining— (a)whether to award damages, or (b)the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention. […] (6) In this section— “court” includes a tribunal; “damages” means damages for an unlawful act of a public authority; and “unlawful” means unlawful under section 6(1).” (a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and (b) the consequences of any decision (of that or any other court) in (a)whether to award damages, or (b)the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention. […] (6) In this section— “court” includes a tribunal; “damages” means damages for an unlawful act of a public authority; and “unlawful” means unlawful under section 6(1).”

[114]The Council and the SoS both recognised that, in principle, the operation of the Deemed Consent Rule in the circumstances of this case could amount to an interference with a third party’s article 6 rights. The circumstances (a later quashing of a local planning authority’s decision notified in time) differ from those in Nunn (a failure by the authority to notify in time). Any breach of the Claimant’s article 6 rights, through the Deemed Consent Rule being triggered by the quashing, would arise from the operation of the GPDO itself. Counsel for the Council and the SoS therefore said the conclusion in Nunn, that the GDPO operated in a Convention-compliant way, was therefore distinguishable.

[115]Ms Chalaby also said the remarks in Nunn (contemplating the claimant might have a claim for damages under the HRA as well as the Local Ombudsman scheme) also had to be considered in the light what was said by the House of Lords in R. (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions

[2001] UKHL 23

;

[2001] 2 WLR 1389

and Begum v LB Tower Hamlets

[2003] UKHL 5

, at [40]-[54]. Those decisions establish that, where a decision is taken by an administrative body which is not an “independent and impartial tribunal” within the meaning of article 6, it is the composite procedure that includes the decision being susceptible to a judicial review which satisfies article 6. The absence of a full fact−finding jurisdiction in the tribunal to which an “appeal” lies from the administrative decision-making body does not disqualify that tribunal for purposes of article 6(1).

[116]A local planning authority is itself not an independent and impartial tribunal for article 6 purposes: see, eg. R. (Cummins) v Camden LBC

[2001] EWHC Admin 1735

, at [343] (per Ouseley J); Friends Provident Life v Secretary of State

[2001] EWHC Admin 820

;

[2002] 1 WLR 1450

, at [83] (per Forbes J). and R. (Adlard) v Secretary of State

[2002] EWCA Civ 735

;

[2002] 1 WLR 2515

, at [16] (per Simon Brown LJ). It is the availability of judicial review of its decisions in the High Court which results in article 6 being satisfied.

[117]Ms Chalaby submitted that the remarks in Nunn about the availability of damages for a breach of article 6 did not reflect the more detailed analysis in these cases of the application of article 6 in relation to planning decisions, and whether the local planning authority (not itself an “independent and impartial tribunal”) could, by reference to article 6, be said to have acted unlawfully within the meaning of section 6(1) of the HRA. As I have already noted, in Nunn the relevant “wrong” on the part of the planning authority was its failure to act (i.e. to notify its decision within the 56 days) but section 6(6) of the HRA confirms that a failure to act can constitute an unlawful act for the purposes of section 6(1).

[118]I accept that, in the light of these other authorities, I should not rely upon the decision in Nunn to conclude there is in this case (or but for my other findings would be) a claim for damages against the Council for a breach of section 6(1) of the HRA. The remarks in Nunn, at [31], were obiter and, even as such, were expressed in tentative terms (I note that, in addition to article 6 unlawfulness, Wall LJ referred to the local planning authority having acted negligently). The claimant’s attack in Nunn had been upon the decision of the Inspector on the appeal from the enforcement notices that had been served on the interested party. It was a failure by the Inspector to consider the merits of the appeal that she said was a denial of her article 6 right. Her focus was upon the GPDO being read in an HRA-compliant manner to support that challenge (that and related relief being refused by the Court of Appeal) and she was not interested in damages against the local planning authority. Not only were the remarks obiter but they were based upon the parties’ concessions. It is clear that Waller LJ had the point which emerges from the decisions in Alconbury and Friends Provident well in mind: see his judgment at [18]. Although I am puzzled by his reference, at [21], to those decisions among others supporting the conclusion that the planning authority’s failure had the effect of depriving the claimant of her article 6 rights, it is clear that the existence of a potential damages claim under section 8 of the HRA was conceded by the parties. Indeed, the likely availability of a damages claim was suggested by the Secretary of State and the interested party: see the judgment at [12], [21] and [23]. Importantly for present purposes (and although it is not entirely clear whether he was instead only making the Alconbury point) the claimant’s counsel appears to have assumed that the local planning authority was an independent and impartial tribunal for the purposes of article 6: see the judgment of Waller LJ at [19] and the judgment of Wall LJ at [40].

[119]In my judgment, in the light of the authorities referred to in paragraph 114 above, it cannot be said that, in making the Decision, the Council was acting as an independent and impartial tribunal within the meaning of

article 6 of the ECHR

. It follows that, unlawful though the Decision was, the Council was not in breach of section 6(1) of the HRA. Under sections 8(1) and 8(6) of the HRA a claim to damages is confined to cases where a public authority has acted unlawfully in breach of section 6(1).

[120]The fact that the Claimant availed herself of the right to seek a judicial review - i.e. invoked the second part of the composite procedure which, per Alconbury, makes it article 6 compliant - highlights the point that damages cannot be attributed to the Decision, which is quashed. This conclusion dovetails with the third part of my analysis above about the effect of the January Order and its paragraph 3 providing full redress for the Claimant in respect of her challenge to the Decision: compare section 8(3) of the HRA.

[121]As no section 6(1) unlawfulness emerges from the Claimant having appealed to the independent and impartial tribunal (the High Court) and obtained the January Order, it must follow, as counsel submitted, that any infringement of her article 6 rights through the ex-post facto operation of the Deemed Consent Rule (on the present hypothesis) is instead the result of how the scheme under paragraph W(11) operates in such circumstances as the present. The deficiency is in the secondary legislation itself, not an act (or omission) of the Council.

[122]Counsel recognised that in principle the article 6 rights of a third party such as the Claimant might be engaged in these circumstances. The operation of the Deemed Consent Rule could be said to amount to a final determination of that person’s civil rights. Although the person has access to the High Court’s supervisory jurisdiction (so that on the face of it, and applying Alconbury, article 6 is complied with) resorting to it to obtain a quashing order that triggers the Deemed Consent Rule would mean that the court can provide no effective remedy for that otherwise successful party.

[123]

Article 13 of the ECHR

provides that everyone whose rights and freedoms under the Convention are violated shall have an effective remedy before a national authority. The party would not have had access to a fair and effectivehearing by an independent and impartial tribunal (the court). Compliance with article 6 requires what Lord Slynn in Alconbury, at [49], referred to as “sufficient judicial control [i.e. over the administrative decision-making process] to ensure a determination by an independent and impartial tribunal subsequently.” In Adlard, addressing the issue of article 6 compliance (of the English planning system which allows the local planning authority to grant planning permission without having afforded objectors them any opportunity of an oral hearing subject to the court’s supervisory jurisdiction on a judicial review application) Simon Brown LJ said, at [32], “the remedy of judicial review, in my judgment, amply enables the court to correct any injustice it perceives in an individual case.” In Cummins, at [343], Ouseley J said:

“[o]n that review, the court has the full jurisdiction to deal with procedural and substantive errors of law.”

[124]A later quashing of the Decision which triggered the Deemed Consent Rule would produce an injustice, not correct one. The very order invalidating the grant of prior approval would (per the Claimant’s basic predicate in this case) dispense with the need to obtain prior approval. That would be anything but the article 6 compliant control envisaged by the above authorities. What, then, could the court do to avoid the injustice?

[125]A claim for damages is not available for the reasons explained above.

[126]Nor is there is scope for a declaration of incompatibility under section 4 of the HRA in respect of paragraph W(11) operating in this way for the reason given in paragraph 89 above.

[127]The outcome of the Deemed Consent Rule operating to infringe the Claimant’s rights could therefore only be avoided by interpreting paragraph W(11) in an HRA-compliant way. As Ms Chalaby and Ms Parekh said, the court would have to act upon its duty under section 3 of the HRA to read and give effect to this part of the GPDO in a way which is compatible with the article 6 right. There is no requirement to identify a precise form of wording to give effect to the Claimant’s rights: see Thomas v Bridgend. What would be required, in my judgment, would be something along the lines (as a rider applicable to each of W(11)(a) and (b)) of “… and in the event of the said [determination/notice of prior approval] being subsequently set aside by the court on an application for judicial review, such later date or event as may be specified by the court.”

[128]But, as with the Claimant’s claim for damages under section 8 of the HRA, all of this assumes that, in the present case, the Claimant is a ‘victim’ (within the meaning of section 7 of the HRA) of the Deemed Consent Rule operating in this way. That raises the question of whether the Decision involved a determination of her “civil rights” within the meaning of section 6(1) of the HRA.

[129]Although decisions of the European Court of Human Rights have extended the reach of article 6 into administrative decision−making (what Lord Hoffmann described in Alconbury, at [84] as "substantial modification of the full judicial model") not every such decision involves a determination of civil rights. Public law matters are generally outside the scope of article 6: see Alconbury, at [41], [79], [135] and [148]; Cummins, at [311], where Ouseley J said the complaints by some claimants about the loss or enjoyment of the facilities of leisure and community centre were “on the public law rather than private rights side of the line”); and Bovis Homes v New Forest DC

[2002] EWHC Admin 483

, at “[382]” (one of many bearing that number in the transcript which begins with it – it is on page 66) the same judge said “a civil right is not being determined, simply by virtue of the fact that an administrative decision is being made” and “[i]t is necessary, rather, that that process determine or directly affect an arguable civil right.”

[130]If, therefore, the Claimant does not have an actionable civil right under domestic law then article 6 does not apply.

[131]The courts have accepted that it is possible in principle for a decision on a planning application to engage the civil rights of persons other than the applicant (such as IP1) or landowner (such as IP2) but the link between the decision and that third party’s alleged right must not be too tenuous: see Cummins, at [315].

[132]In Cummins, Ouseley J relied upon a decision of the European Court of Human Rights in Balmer−Schafroth v Switzerland

(1997) 25 EHRR 598

for the principle that “mere tenuous connections or remote consequences are not sufficient to bring Article 6(1) into play”. Ms Chalaby drew my attention to the recent decision of that Court (finalised on 8 April 2024) in Cangi and Others v. Türkiye (48173/18) which confirms this basic principle.

[133]The decision in Cangi concerned the approval by the relevant Turkish ministry of an environmental impact assessment report concerning the developer’s extraction of gold using cyanide leaching. The applicants applied to the Manisa Administrative Court for the annulment of the Ministry’s decision. The court ultimately rejected their case and they were unsuccessful on appeal to the Supreme Administrative Court. A subsequent application to the Constitutional Court based upon article 6(1) and article 8 rights having been violated, through the outcome of the proceedings in the Administrative Court, was successful (on article 8 grounds) only in the case of one applicant (Mustafa Sakaryalı) who resided in a village near the mine and was a farmer. Before the European Court of Human Rights, the government contested the applicants’ victim status (under

article 34 of the ECHR

) arguing that the proceedings before the Administrative Court had not related to their direct and personal rights.

[134]In Cangi, at [34], the Court, in re-stating the principle by reference to Balmer-Schafroth and other cases, said:

“37. The Court notes that the first four applicants do not live in the vicinity of the mine and accept that the mine’s operations do not directly and personally affect them. Accordingly, their situation differs from that of the applicants in Okyay and Others (cited above), which concerned the operation of three thermal power plants on account of the damage that they had caused to the environment and the risk they posed for the life and health of the region’s population, to which the applicants belonged. Contrary to the current case, in Okyay and Others, the contested matter therefore brought into play the applicants’ own right to protection of their physical integrity (ibid., §§ 65 and 66). Moreover, the situation of the first four applicants vis-à-vis the outcome of the domestic proceedings is distinguishable from the one in Okyay and Others. In finding Article 6 § 1 applicable in that case, the Court relied, inter alia, on the fact that the applicants, despite not living close to the thermal power plants, had nevertheless been affected by their emissions, the extent of that potential pollution having been established during the course of the domestic proceedings and courts ruling in their favour (ibid., §§ 66-67, compare with Ivan Atanasov v. Bulgaria (cited above, § 93)). Lastly, neither the fact that the first four applicants considered themselves as “public watchdogs” nor the informal movement they have created is sufficient for the Court to consider the proceedings to have been directly decisive for their civil rights and obligations.”

[135]In the introduction to this judgment (paragraph 4 above) I have noted the Claimant’s recognition that the IPs proposed development would not have an impact upon her. She does not live near Shoots Lane and her opposition to it appears to be based upon what she believes to be altruistic grounds.

[136]In my judgment, her interest in IP1’s application is too tenuous and the consequences for her of the development proceeding are too remote to trigger article 6(1). She is on the “public watchdog” as opposed to the article 34 “victim” side of the line for Cangi purposes. This is highlighted by the lack of a properly pleaded and particularised claim for damages under section 6 of the HRA.

[137]The decision of the Court of Appeal in R. (Fayad) v Secretary of State

[2018] EWCA Civ 54

confirms that any such claim must be properly pleaded and particularised. Singh LJ, at [51]-[56], explained how a claimant’s obligation to do so springs from the obligation upon the court itself under section 8(4) of the HRA. Under section 8(4), the court in determining any damages award must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under

article 41 of the Convention

. Article 41 requires the European Court of Human Rights to afford “just satisfaction” to a party injured by the violation of a Convention right where the domestic law “allows only partial reparation to be made”. Under section 8(3) of the HRA, at the domestic level, if the court is to award damages alongside another remedy it must first be satisfied that the award is necessary to afford just satisfaction in the article 41 sense.

[138]Accordingly, in Fayad, Singh LJ said:

“53. In appropriate cases this power to award damages for breach of the HRA is important in order for the court to ensure that “just satisfaction” (to use the terminology of the Convention itself, which is reflected in section 8(3)) is afforded to a person whose fundamental human rights are breached by a public authority. However, this important provision must not be abused. 54. In particular claims for judicial review which include a claim for damages for breach of the HRA should be properly pleaded and particularised. They should set out, at least in brief, “the principles applied by the European Court of Human Rights” under Article 41 of the Convention which are said to be relevant. ……”

[139]As Ms Chalaby observed, the Claimant even falls short of asserting in vague terms (which the decision in Cummins, at [320], shows would not suffice) how her civil rights are said to be engaged for the purposes of article 6(1).

[140]Had the Deemed Consent Rule operated in favour of the IPs I would not, therefore, have been persuaded that any additional remedies flowed from it. Decision

[141]I therefore make no further order on the claim pursuant to paragraph 4 of the January Order. This is not a case for the grant of any additional remedies beyond the quashing of the Decision.

[142]In anticipation of my judgment, and not knowing what my decision would be, Ms Chalaby and the Claimant made submissions about the costs reserved by paragraph 6 of the January Order.

[143]The Council’s position, in the event of me accepting its case that no additional remedies are required, was that the Claimant should pay its costs of addressing the issue. The Council’s fallback position was that the court should not make any order in respect of the costs reserved by that paragraph 6.

[144]The Claimant said she should have her costs, on the basis that the issue has been generated by her successful challenge to the Decision, and that making no order for costs would still impose on her a financial burden which would be unjust in the circumstances.

[145]I have decided that this is a case where I should not make any further costs order, leaving the three represented parties to bear their own costs.

[146]That decision was a finely balanced one. It is not quite the situation addressed in M v Croydon London Borough Council

[2012] EWCA Civ 595

, at [62]-[63], to which Ms Chalaby referred in support of the Council’s fallback position on costs. The decision in that case was directed at the proper approach to awarding costs in judicial review proceedings. When Lord Neuberger MR said (in a section of his judgment headed ‘The position where cases settle in the Administrative Court’) “I would accept the argument that, where the parties have settled the claimant’s substantive claims on the basis that he succeeds in part, but only in part, there is often much to be said for concluding that there is no order for costs”, he was not, I think, addressing the present type of situation where the January Order did not settle the claim on the basis of partial success. The January Order instead settled part of the claim with the Claimant pressing on in the pursuit of further success (with the costs of that pursuit being reserved for later determination).

[147]The Claimant has indeed pressed on with the claim to additional remedies in the face of the written submissions by the Council in February 2026 and the SoS in May 2026. She has done so by relying upon a further set of reply submissions not covered by the January Order (see paragraph 18 above) and knowing since February 2026 that the Council’s position was that “the Claimant’s Submissions on remedy are in many respects unjustified, unsupported by authority, and not properly pleaded.” She has been unsuccessful.

[148]Nevertheless, I have adopted the Council’s alternative suggestion because this is a case where, by signing up to the Statement of Reasons in the January Order, the Council gave the Claimant initial encouragement that there might be something in the claim to additional remedies. That was at odds with Ms Chalaby beginning her oral submissions at the hearing by expressing surprise that the parties were before the court when the Council and IP1 both recognised the need for a re-determination of his application. Further, and this is a point within that wider observation, I bear in mind that I directed that there should be an oral hearing rather than a determination of the issue of additional remedies on the papers as paragraph 4(c) of the January Order contemplated might be done. I think the range of points covered in this judgment shows it was probably unrealistic for the January Order to provide that they might be determined without an oral hearing. The oral hearing was relatively short (certainly when compared with the amount of time it has taken to write this judgment addressing the points, or which would have been required for a paper-based determination of any adequacy) but it has added to the parties’ costs. Finally in relation to the exercise of the discretion over costs, I think it is fair to say that the Claimant, the Council and the SoS each reverted to something approaching the sentiment expressed in the Statement of Reasons by suggesting my decision on some of the points might be of value in guiding parties in other cases where the Deemed Consent Rule could be in play.

[149]I would therefore invite the parties to agree a form of order which records that no further order is made on the claim either in terms of remedy or costs.

[150]This judgment is to be handed down remotely in the absence of representation by the parties and handing down will be adjourned solely for the purpose of preserving the time for the Claimant to file any appellant’s notice against the order which reflects it. If the Claimant does apply for permission to appeal then I will set a time for filing an appellant’s notice in accordance with CPR 52.12 by my next decision on that application. The decision will be on the papers and the reasoning in support set out in the Form N460. If the Claimant wishes to apply for permission to appeal then draft grounds of appeal should be filed and served by 4pm on Friday 11 September 2026. The Council and SoS should file and serve any brief written responses they wish to make by 4pm on Friday 18 September 2026.