This article was first published by Lexis®PSL on 22/01/2021.

Planning analysis: The High Court quashed a decision to grant a planning permission under section 73 of the Town and Country Planning Act 1990 (TCPA 1990), together with the permission itself, in circumstances where the local planning authority (LPA) had made several errors in the decision-making process. Among these were the inclusion of conditions that were inconsistent with the original permission.

R (on the application of Parkview Homes Ltd) v Chichester District Council [2021] EWHC 59 (Admin)

What are the practical implications of this case?
This case illustrates the extent of a LPA’s powers under TCPA 1990, s 73. It confirms that the operative words of the description of development on the original permission cannot be amended and the conditions must not be inconsistent with the description. An application for a new planning permission should therefore be made if an amended description of development is sought.

In addition, the case demonstrates that, while informatives can be included in planning permissions to provide information, they cannot be used to secure compliance.

What was the background?
The claimant developer brought a judicial review claim against the decision by the defendant LPA (the council) to grant a planning permission under TCPA 1990, s 73 (the section 73 permission) for development at premises without compliance with conditions attached to a previous grant of planning permission (the original permission).

The premises were owned by the interested party (IP), who there operated ‘The Vestry’ under a licence granted by the council for activities including the performing of live music, the playing of recorded music, and late night refreshment. The licence did not restrict the level of noise generated. The claimant owned the neighbouring property, which was under development as residential accommodation.

For some time, the claimant had been concerned about the noise impact of The Vestry on the residential accommodation and the council had advised that the IP should regularise its activities by means of a planning application. This was eventually submitted, and the resultant section 73 permission included several new conditions which restricted the use of the premises. In addition to the conditions, a number of informatives were included, one of which referred to setting and maintaining a music noise limiter.

The claimant advanced four grounds of challenge:

•  the section 73 permission amounted to an unlawful variation of the original permission
•  the decision to grant the section 73 permission was irrational as the council was aware of and had acknowledged the need to achieve noise protection, but failed to do so
•  alleged consultation failures were procedurally unfair
•  it was irrational for the council to conclude that the proposed noise mitigation measures would ensure that there would be no harmful impact on future residents of the residential accommodation

As the council did not contest the first ground, it did not participate in the hearing.

What did the court decide?
The judge allowed the appeal and quashed the decision and the section 73 permission.

In respect of the first ground, the judge said the second condition of the section 73 permission unlawfully sought to restrict the use of the ground floor of the premises to a use that was inconsistent with the use specified in the description of development in the original permission (applying R v Coventry City Council, ex parte Arrowcroft Group plc [2000] Lexis Citation 5053 and Finney v Welsh Ministers and others [2019] EWCA Civ 1868). He further criticised a number of other conditions. Overall, he said that the section 73 permission contained conditions that were inconsistent with the original permission, purported to grant permission for something other than that which was originally permitted, and other conditions that were not consistent with an attempt to limit the new permission. In consequence, the judge concluded that the first ground had succeeded.

As to the second ground, the judge said that it was ‘perverse’ of the council through its officers to note the importance of a noise limiter, but to fail to secure compliance of such a limit by some means, or to consider deferring a decision or refusing permission. Therefore, he said, the second ground had been made out.

In considering the third and fourth grounds, the judge said that, as he had already determined that the first and second grounds had succeeded, it was unnecessary for him to deal with these in any detail. However, he commented that there appeared to be substance in both grounds. He further said that it was not appropriate to apply section 31(2A) to (2C) of the Senior Courts Act 1981 and decline to quash the decision. The judge explained that he could not conclude that it was highly likely that the outcome would not have been substantially different if the errors had not occurred.

Case details
• Court: Planning Court (Queen’s Bench Division), High Court of Justice
• Judge: David Elvin QC (sitting as a deputy judge of the High Court)
• Date of judgment: 15 January 2021

Written by Howard Leithead, barrister, at No5 Barrister’s Chambers.