The developer originally sought permission for 450 homes. That was refused. Before the appeal, it proposed an alternative with 250 homes to be adopted only if the size of the development were considered to be the critical factor. The inspector decided for the smaller scale application. The developer appealed, but the Secretary of State dismissed the appeal saying in addition that it was improper to allow the smaller scale development where the development was not severable.
Held: It had been permissible for the Inspector to grant a lesser permission than had been applied for, by the use of conditions and provided the effect was not to alter the substance of the application, which was a matter on which the Secretary of State had to exercise his judgment. The court went on to explain how the judgment should be reached: ‘The main but not the only criterion on which that judgment should be exercised is whether the development is so changed that to grant it would be to deprive those who should have been consulted on the changed development of the opportunity of such consultation.’ Where a proposed deveeopment had already been through full consultation, and opposition had been total, it was not necessary to consult again on the smaller proposal.
The court considered the additional difficulties in commons application cases of allowing amendments on apppeal because of the need to allow for the public interest.
(1982) 43 PandCR 233
England and Wales
Cited – Regina (Alfred McAlpine Homes Ltd) v Staffordshire County Council 17-Jan-2002
The court refused to set aside the council’s decision to register as a common a lesser area then applied for. ‘ Does the council have power to register a smaller area than applied for? It is perfectly true that there is no express power in either . .
Cited – Oxfordshire County Council v Oxford City Council, Catherine Mary Robinson ChD 22-Jan-2004
Land had been registered in part as a common. The council appealed.
Held: The rights pre-existing the Act had not been lost. The presumption against retrospectively disapplying vested rights applied, and the application had properly been made. . .
Lists of cited by and citing cases may be incomplete.
Updated: 16 May 2022; Ref: scu.192183