Planning permission for erection of house in garden — Appeal site purchased by applicant — Revised plan put forward — Time-limit of four months imposed to coincide with five-year limit of original permission — Appeal against time-limit resulting in refusal of permission — Permission renewed — Appeal against second refusal — Emerging plan — Whether material change in circumstances since first permission granted — Whether fact that plan not formally adopted making its consideration premature — High Court refusing application to quash inspector’s decision
In 1986 the rear garden of 1 Friars Gardens, Acton, London W3, was subdivided. Permission was granted to the owner of the whole site for the erection of a two-storey detached house, subject to a five-year condition that work began before August 28 1992. The applicant bought the site at public auction on February 22 1988, but did not commence works because of the declining property market.
In October 1991 he submitted revised drawings for planning permission which was granted with a validity of four months, ie to a date corresponding with the expiry of the 1987 grant. He appealed against that condition and planning permission was then refused for the development in November 1992. That decision was quashed by consent on the ground that the disputed condition was unreasonable and a further application was made to renew the first planning permission. That was refused in February 1994 after a public inquiry. The applicant appealed to the High Court arguing, inter alia, that unimplemented planning permissions should normally be renewed unless there were material changes in the planning circumstances; and that there could be separate planning units within a single unit of occupation: see Burdle v Secretary of State for the Environment (1972) 223 EG 1597.
Held The application was refused.
1. From the time of the original grant of planning permission, the Ealing unitary development plan had been promoted although not yet adopted. In that emerging plan, note was taken of national policy relating to density of development or “town cramming”. H30 of the Ealing UDP stated that new residential development had to secure, as a first priority, a good environment so that any loss of garden or green space would only be permitted if there were compensatory benefit in environmental and landscape terms.
2. That represented a material change in planning policy so that the argument that planning permission should have been renewed was unavailing. Further, although the plan had not yet been adopted, the inspector was right to take the question of any loss of amenity into account. The emerging policy was a material consideration, even if not formally adopted and the inspector would have been wrong not to have taken it into account.
3. While the expired permission was part of planning history, the weight to be given to it was a matter for the inspector.
4. The case of Burdle had no application to the present case. It concerned the area of the site in enforcement proceedings to establish whether there had been a material change of use and whether the whole of the area had to be looked at for a particular purpose.
5. The exercise in the present case was of a wholly different kind. It was plain from the decision letter that the inspector had carried out a balancing exercise and given proper reasons for his planning judgment on a matter of a planning consideration.
Barry Payton (instructed by Clarkson Wright & Jakes, of Orpington) appeared for the applicant; Mary Macpherson (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment; the second respondent did not appear and was not represented.
