An application was made under section 73 to develop land without compliance with conditions previously attached to a planning permission, the relevant condition being that the development commence within five years of the date of planning permission.
Held: A Local Authority was correct to refuse to extend the time for the commencement of a development under a planning permission where the development would not be in accordance with the current planning policies.
Sullivan J said: ‘An application under section 73 is an application for planning permission: see section 73(1) . . Whilst section 73 applications are commonly referred to as applications to ‘amend’ the conditions attached to a planning permission, a decision under section 73(2) leaves the original planning permission intact and unamended. That is so whether the decision is to grant planning permission unconditionally or subject to different conditions under paragraph (a), or to refuse the application under paragraph (b), because planning permission should be granted subject to the same conditions.
In the former case, the applicant may choose whether to implement the original planning permission or the new planning permission; in the latter case, he is still free to implement the original planning permission . .’
and ‘ . . Prior to the enactment of (what is now) section 73, an applicant aggrieved by the imposition of the conditions had the right to appeal against the original planning permission, but such a course enabled the Local Planning Authority in making representations to the Secretary of State, and the Secretary of State when determining the appeal as though the application had been made to him in the first instance, to ‘go back on the original decision’ to grant planning permission. So the applicant might find that he had lost his planning permission altogether, even though his appeal had been confined to a complaint about a condition or conditions.
It was this problem which section 31A, now section 73, was intended to address …
While section 73 applications are commonly referred to as applications to ‘amend’ the conditions attached to a planning permission, a decision under section 73(2) leaves the original planning permission intact and un-amended. That is so whether the decision is to grant planning permission unconditionally or subject to different conditions under paragraph (a), or to refuse the application under paragraph (b), because planning permission should be granted subject to the same conditions.
In the former case, the applicant may choose whether to implement the original planning permission or the new planning permission; in the latter case, he is still free to implement the original planning permission. Thus, it is not possible to ‘go back on the original planning permission’ under section 73. It remains as a base line, whether the application under section 73 is approved or refused, in contrast to the position that previously obtained.
The original planning permission comprises not merely the description of the development in the operative part of the planning permission . . but also the conditions subject to which the development was permitted to be carried out …’
Judges:
Sullivan J
Citations:
Gazette 13-May-1998, [1998] EWHC Admin 483, [1998] 3 PLR 72
Statutes:
Town and Country Planning Act 1990 73
Jurisdiction:
England and Wales
Cited by:
Cited – Robert Hitchins Ltd, Regina (on The Application of) v Worcesteshire County Council and Others Admn 18-Nov-2014
A planning permission was granted with an agreement under section 106. A second permission was later granted. The court was now asked whether the section 106 agreement applied also to the second permission.
Held: As a matter of law, the . .
Approved – Regina v Leicestershire City Council Ex parte Powergen UK Plc QBD 17-Nov-1999
A planning permission had been granted requiring detailed proposals for the development to be delivered before a certain date. The applicant submitted proposals for part only of the site, requesting a variation to allow such a part proposal. The . .
Approved – Regina v Leicester City Council ex parte Powergen UK Limited CA 2000
. .
Cited – London Borough of Lambeth v Secretary of State for Housing, Communities and Local Government and Others SC 3-Jul-2019
The second respondent sought a certificate from the Council determining that the lawful use of its store extended to sales of unlimited categories of goods including food. A certificate to that effect was refused by the Council, but granted by a . .
Lists of cited by and citing cases may be incomplete.
Planning
Updated: 12 April 2022; Ref: scu.138604