Legal Update: Section 73 Applications

Thu, 20 Jun 2019

In this legal update which was first published in RTPI's Summer Newsletter, Leanne Buckley-Thomson considers section 73 applications exploring recent case law which may help planners to further navigate this tricky area of law.

The planning permission is secured, the conditions are in place, now all that’s left is to commence development, right?   Not necessarily.  As planners you’ll be keenly aware that the road to development is not always smooth.  Unexpected events occur, problems arise, and sometimes once permission has been obtained people are unable to comply with conditions or have a change of heart.  Luckily, there are options available which do not necessarily mean going back to the drawing board.

Two statutory mechanisms are available to assist.  Section 73 of the Town and County Planning Act 1990 (‘the 1990 Act’) allows an application to be made to a LPA for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted.  Further, section 96A allows an application to be made to a LPA for a change to any planning permission or permission in principle relating to land in their area provided they are satisfied the change is not material.  Both mechanisms are clearly needed; to start all over again would mean gathering a complete set of documentation rather than simply producing what is necessary, another complete assessment of the merits and the attributable risks, and possible CIL consequences.

That said, such applications are not smooth sailing with inconsistency between the authorities’ approaches and a lack of clarity as to dealing with the same.  This article will not resolve that – sorry to those who came for a resolution.  Rather, it seeks to summarise three recent decisions with a particular focus on section 73 applications, there being no recent case law of note regarding section 96A, which may be of assistance.

JBS Park Homes

JBS Park Homes (A Firm) v Secretary of State for Communities and Local Government [2018] 6 WLUK 349 is a decision from June 2018 in respect of an appeal against the Inspector’s decision to uphold the LPA’s refusal to grant permission for the Claimant’s section 73 application.

Planning permission was granted in May 1988, subject to nine conditions, for the use of the land for holiday static and touring vans.  The Claimant took issue with two; condition 2 stipulated that no more than ten touring caravans and twenty static caravans should be stationed on the site at any one time and condition 5 stated that between 1 April and 31 October in any one year, none of the caravans shall be in the same occupation for a continuous period exceeding 31 days, with no return within the following 31 days by the previous occupier.

The Claimant was granted permission for the alteration of condition 5 to allow an extended season from 1st March to 30th November and further obtained an LDC on appeal for “Use of land for the purposes of siting of caravans for the purposes of human habitation, excluding the months of May, July 2nd to August 1st and September 2nd to October 2nd”.

A section 73 application was subsequently made for the removal of the aforementioned two conditions to achieve all-year-round residential use with no distinction between static and touring caravans on the basis that though it may have been foreseen that the conditions would create a seasonal holiday caravan site, this was not the result.  The caravans had to be vacated by their residents for the relevant three months; nothing prevented them swapping units or staying in touring caravans on-site.

The application was refused on highway safety and sustainability grounds.  The Claimant appealed seeking to vary condition 2 so that there should be no more than 30 caravans on the site, and condition 5 so as to limit occupation to over 50s.  The appeal was dismissed, the Inspector finding both conditions to be necessary and reasonable. 

The Claimant sought remedy from the High Court submitting that though the Inspector had given a reason as to why there should be no more than ten touring caravans on site, no reason was given as to why there should be no more than twenty static caravans nor as to why thirty would cause harm.  The Inspector could have imposed a Grampian condition preventing the variation coming into effect unless and until suitable access was created.

The matter was considered by His Honour Judge Cotter Q.C.  In summary:

  • The Claimant did not advance a clear argument before the Inspector that what was sought through variation was that up to 30 static caravans should be allowed on the site and it had no desire to increase use of touring caravans.
  • The Inspector was fully entitled, if not obliged, to procced on the arguments before him without straining to interpret the intention behind submissions.
  • The obligation is to put the case to be considered before the Inspector with nothing held back (West v First Secretary of State [2005] EWHC 729[1] applied).
  • The Inspector considered any increased residential use as unsustainable and that the conditions should not be removed and relaxed if they would have this effect[2]. He also plainly considered that any significant increase in the volume of traffic movements was not sustainable given the access/egress from the site[3]
  • Any deficiencies in the presentation of the Inspector’s reasoning were the fault of the Claimant’s failure to nail its colours to the mast and ground one was an impermissible attack on planning judgment[4].
  • The Claimant had made no suggestion about the possibility of improvement of access and no “material” was provided in respect of any proposal. The Inspector was fully entitled to assume that the Claimant had no proposals to make[5]
  • It was not for the Inspector to make any assumption that potential improvement of the access was a live issue and to construct a condition. Planning Judgement cannot be required to be exercised in a vacuum and it would be wrong to allow the Claimant to now rely on lacuna for which it is responsible[6].
  • Even if the Inspector had fallen into error relief would not have been granted due to the conduct of the Claimant[7].

Practical Point: This case is a sharp reminder of the importance of putting one’s case in full at appeal, presenting appropriate evidence and addressing issues at the relevant time.  It highlights the discretionary nature of remedies in statutory reviews.

 

Finney

Finney v Welsh Ministers [2018] EWHC 3037 is a recent case from November 2018 currently pending an appeal to the Court of Appeal.

The Claimant applied for an order quashing the decision of Planning Inspector in respect of an appeal against the LPA's refusal to grant planning permission pursuant to section 73.

Planning permission had been granted for the installation and 25-year operation of two wind turbines, with a tip height of up to 100m, and associated infrastructure subject to 22 conditions.  Condition 2 provided that the development was to be carried out in accordance with a number of approved plans and documents including figure 3.1 Typical Wind Turbine Elevation 1:500 @ A3” which showed a wind turbine with a tip height of 100m.

A section 73 application was made for the removal or variation of condition 2 to enable a taller turbine type to be erected superseding figure 3.1 with figure 3.1A permitting tip heights of up to 125m.  This was refused the LPA considering the proposed increase to have an unacceptable impact upon the landscape contrary to local planning policy.  No suggestion was made that the LPA did not have the power to grant the application.

An appeal subsequently took place via hearing in the context of which the Claimant objected on the basis of his residential amenity.  The LPA did not suggest that the Inspector, on appeal, had no power to grant the variation sought.  The Inspector in allowing the appeal did not in express terms consider the extent of her powers under section 73.

The Claimant sought recourse in the High Court on one ground; that the Inspector should not have allowed the appeal because she had no power under section 73 to amend a condition which had the effect of directly contradicting the description of the development permitted.  Further or alternatively, that the Inspector failed to consider at all whether the application before her constituted a “fundamental alteration” of the prior permission[8]

The application was heard and refused by Sir Wyn Williams.  In summary:

  • The cases of R v Coventry City Council Ex p. Arrowcroft Group Plc [2000] 7 WLUK 647 (in which it was held that under Section 73 a different condition could be imposed, but only if it did not amount to a fundamental alteration of the original proposal),  R (on the application of Wet Finishing Works Ltd) v Taunton Deane BC [2017] EWHC 1837, Pye v The Secretary of State for the Environment & Anor [1999] PLCR 28, and R (on the application of Vue Entertainment Ltd) v City of York Council [2017] EWHC 588 were considered
  • Sir Wyn Williams’ discussion as to the parties’ positions commences at paragraph 36 to the Judgment.
  • The ratio of the decision in Arrowcroft is to be found in paragraph 33 of the judgment and that this was followed and applied in Wet Finishing
  • Though Mr Justice Collins expressed the view in Vue Entertainment that Arrowcroft was authority for the proposition that it was not open to a LPA to vary conditions pursuant to an application under section 73 “if the variation means that the grant (and one has therefore to look at the precise terms of the grant) are themselves varied”, Sir Wyn Williams was not convinced that paragraph 33 of Arrowcroft was authority for it and did not accept that it formed part of the ratio of Mr Justice Collins’ decision[9].
  • The only proper interpretation of Wet Finishing Works is that a section 73 variation can be lawful notwithstanding that it may necessitate a variation to the terms of the planning permission, and this must be part of the ratio of the decision.
  • The reasoning behind that decision was not wrong and Mr Justice Singh’s approach was wholly consistent with the ratio and reasoning of Mr Justice Sullivan in Arrowcroft allowing the words of section 73 to be applied with an appropriate degree of flexibility[10].
  • As to whether the varied condition would create a fundamental alteration to the original proposal[11], Sir Wyn Williams was “not entirely convinced that the Inspector had in mind that it was necessary for her to consider in terms whether the variation sought would create a fundamental alteration to the original proposal” however nonetheless concluded on balance that she was aware of that obligation and considered it[12]. It was not addressed more directly in the decision letter because it was never the LPA’s case that the application constituted a fundamental alteration.
  • A possible reading of the decision letter was that the Inspector had failed to consider whether the application before her constituted a fundamental alteration to the original proposal, however this did not mean that a quashing order would’ve been granted[13].

Practical Point: This decision establishes that a section 73 variation can be lawful even if it changes the operative part of the permission and contradicts the original description; however, conditions must’ve been such that the LPA could lawfully have imposed them upon the original planning permission and must not amount to a fundamental alteration.  This clarity may bring some improved consistency in approach between LPAs.  It is pending appeal so watch this space.

Lambeth Finally, Lambeth LBC v Secretary of State for Communities and Local Government [2018] EWCA Civ 844 is another case which should be borne in mind in the context of Section 73 applications.  Though in the context of an appeal following a determination that the first interested party was entitled to a section 192 certificate, it is an important reminder of the care required when granting variations.The Second Respondent applied to the LPA for a CLEUD to the effect that it would be lawful to use a building currently used as a Homebase store for unrestricted retail purposes within class A1.  That application was refused but granted on appeal.  The LPA applied to quash that decision and Mrs Justice Lang dismissed their appeal.The problem arose due to the way in which the LPA had dealt with an application to vary a condition attached to a previous planning permission which had been granted subject to a condition restricting the range of goods permitted to be sold from the site[14].  Though the LPA meant to extend the range of goods permitted to be sold rather than grant unrestricted permission for class A1 use, it did not impose a condition but instead restricted the description of the permitted development.

Considering section 171A of the 1990 Act, failure to comply with a condition is a clear breach of planning control as is carrying out development without permission where required.  Therein lies the problem.  Per section 55(2) of the 1990 Act the use of the buildings for any other purpose of the same class does not amount to development.  As such extending or changing the nature of goods sold does not amount to development, as long as both uses fall within class A1.

The leading Judgment in the Court of Appeal is provided by Lord Justice Lewison.  In summary:

  • His Lordship confirmed the current approach in Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74 which could be taken as representing the law[15].
  • It would be wrong to conclude that the LPA’s decision notice permitted the sale of goods other than non-food goods as that would be directly contradictory of the words of the grant.
  • Practically, that did not matter because a change of use from the retail sale of non-food goods to food (other than hot food), both in Class A1, would not amount to development[16]. The legal effect of the Decision Notice was that “there were no restrictions on retail sale”.
  • The only way that the LPA could prevent the change of use was to successfully argue that the change of use would be a breach of condition within section 171A (1)(b), which was not possible.
  • To agree with the LPA’s argument would add a whole condition with a completely different legal effect to the words they’d used[17].
  • A corrective interpretation could not be used to supply a whole clause which the parties have mistakenly forgotten to include [Cherry Tree Investments Ltd v Landmain Ltd [2012] EWCA Civ 736].
  • A corrective interpretation can only be invoked where something has gone wrong with the language of the contract, as opposed to something having gone wrong with the implementation of the bargain, or the mistaken failure to exercise a power [Honda Motor Europe Ltd v Powell [2014] EWCA Civ 437].
  • The Decision Notice was not arbitrary or irrational nor had anything gone wrong with the language. What went wrong was the LPA’s failure to exercise a power that it had under the Act[18].
  • It was not possible to imply words into the permission[19]. The primary purpose of the Decision Notice was to widen the range of goods that could be sold from the store.  It achieved that purpose and did not lack practical or commercial coherence[20].  Though the reasonable reader might wonder whether Lambeth had made a mistake in not restating the conditions attached to the previous permission, it was not so obvious that it went without saying[21].

Practical Point: This serves as an important reminder of the care required when granting variations and the need for express planning conditions if restricting a permitted use.  Lambeth is currently pending appeal to the Supreme Court.

[1] Paragraph 42 of that Judgment

[2] Paragraph 59 of Judgment

[3] Paragraph 60 of Judgment

[4] Paragraph 63 of Judgment

[5] Paragraph 66 of Judgment

[6] Paragraph 67 of Judgment

[7] Paragraph 71 of Judgment

[8] Paragraph 1 of Judgment

[9] Paragraph 38 of Judgment

[10] Paragraph 40 of Judgment

[11] Paragraph 41 onwards of Judgment

[12] Paragraph 44 of Judgment

[13] Paragraph 47 of Judgment

[14] Paragraphs 2-4 of Judgment

[15] Paragraphs 23-26 of Judgment

[16] Paragraph 36 of Judgment

[17] Paragraph 53 of Judgment

[18] Paragraph 56 of Judgment

[19] Paragraph 64 and 67 of Judgment

[20] Paragraphs 69-70 of Judgment

[21] Paragraph 71 of Judgment

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