Application to amend – Superstore
Your client is developing a site pursuant to a planning permission obtained some years ago. He now finds it difficult, or impossible, to comply with a condition attached to the permission. He could, of course, make a fresh application, but usually the better course is to apply, under section 73 of the Town and Country Planning Act 1990, for a modification of the condition, the advantage being that, although he is technically applying for a new permission, the council are required by subsection (2) to limit their considerations to the new condition(s) to be inserted.
The same avenue is open where the condition to be modified is one that was attached to an outline planning permission in accordance with section 92 of the Act, which requires certain time limits to be imposed for the taking of further steps. Thus, a developer should immediately think in terms of section 73 should he find, for example, that he is, or will be, in no position to apply for approval of reserved matters within the three-year period prescribed by the condition.
However, a snag (to put it mildly) arises where (as occurred in R v Leicester City Council, ex parte Powergen UK plc [2000] EGCS 64) the relevant policy has changed since the grant of the outline permission, and now weighs heavily against the development in question. In Powergen, such a policy change was advanced by the council as their main reason for refusing a section 73 application made by the appellant, who had experienced unforeseen difficulties and delays in preparing the site.
The legality of the council’s refusal was upheld both at first instance ([1999] 4 PLR 91) and by the Court of Appeal. It was held, approving Pye v Secretary of State for the Environment [1998] 3 PLR 72, that the limitation in subsection (2) had not disabled the council from viewing the proposed condition in the light of the policy and considerations subsisting at the date of the application, one of those considerations being that the practical result of allowing the application would be to enable the development to take place after the expiry date of the earlier permission. In the view of the court, such an outcome would clearly fly in the face of the policy behind section 92, which, in the words of Schiemann LJ, “was enacted to prevent the accumulation of unimplemented decisions”.
The implications are considered by Archana Hogarth, of solicitor Rowe & Maw, in
Related items:
Application to amend – Superstore
Your client is developing a site pursuant to a planning permission obtained some years ago. He now finds it difficult, or impossible, to comply with a condition attached to the permission. He could, of course, make a fresh application, but usually the better course is to apply, under section 73 of the Town and Country Planning Act 1990, for a modification of the condition, the advantage being that, although he is technically applying for a new permission, the council are required by subsection (2) to limit their considerations to the new condition(s) to be inserted.
The same avenue is open where the condition to be modified is one that was attached to an outline planning permission in accordance with section 92 of the Act, which requires certain time limits to be imposed for the taking of further steps. Thus, a developer should immediately think in terms of section 73 should he find, for example, that he is, or will be, in no position to apply for approval of reserved matters within the three-year period prescribed by the condition.
However, a snag (to put it mildly) arises where (as occurred in R v Leicester City Council, ex parte Powergen UK plc [2000] EGCS 64) the relevant policy has changed since the grant of the outline permission, and now weighs heavily against the development in question. In Powergen, such a policy change was advanced by the council as their main reason for refusing a section 73 application made by the appellant, who had experienced unforeseen difficulties and delays in preparing the site.
The legality of the council’s refusal was upheld both at first instance ([1999] 4 PLR 91) and by the Court of Appeal. It was held, approving Pye v Secretary of State for the Environment [1998] 3 PLR 72, that the limitation in subsection (2) had not disabled the council from viewing the proposed condition in the light of the policy and considerations subsisting at the date of the application, one of those considerations being that the practical result of allowing the application would be to enable the development to take place after the expiry date of the earlier permission. In the view of the court, such an outcome would clearly fly in the face of the policy behind section 92, which, in the words of Schiemann LJ, “was enacted to prevent the accumulation of unimplemented decisions”.
The implications are considered by Archana Hogarth, of solicitor Rowe & Maw, in No time to be out of phase Estates Gazette 28 October 2000, p180.
Related items:
PP 2003/1
Henry Boot Homes Ltd v Bassetlaw District Council [2002] EWCA Civ 983; [2002] 50 EG 112 (CS).
