It is important to distinguish between a planning application made under section 73 of the Town and Country Planning Act 1990, and one made under section 73A.
The former is essentially a prospective process, the purpose of which is to discharge or amend conditions subject to which planning permission has already been granted. The application seeks permission to carry out the permitted development, but without complying with one or more of those conditions. Permission granted under section 73 constitutes an entirely fresh grant of planning permission, and the original permission remains intact.
In contrast, the latter is a retrospective process seeking planning permission in relation to development that has already been carried out. The procedure applies not only to development carried out without planning permission, but also to development carried out without compliance with one or more conditions subject to which permission had been previously granted.
In Lawson Builders Ltd v Secretary of State for Communities and Local Government [2013] EWHC 3368 (Admin) the local planning authority (“LPA”) had granted planning permission to the claimant in 2004 for the construction of two houses, subject to a condition precedent imposed in the interests of traffic safety. The claimant constructed the two houses without complying with that condition. In 2009, he made a planning application under section 73 aimed at removing the condition. Planning permission was granted on appeal in 2010, with new updated conditions substituted for the earlier one.
The main issue for the court was whether an inspector, on a later appeal against the refusal of the LPA to grant a lawful development certificate, was entitled to reclassify the 2010 planning permission as one, in fact, granted under section 73A.
The court pointed out that the inspector had correctly concluded that the 2004 planning permission had never been implemented, because of the failure to comply with the original condition precedent. Accordingly, the 2009 planning application was in substance seeking retrospective planning permission under section 73A. The inspector had not erred. It was not unlawful for a decision maker to approach a planning application made under section 73 as one that can properly be determined under section 73A, if he is satisfied that the application triggers the requirements to be met under section 73A for that provision to apply.
John Martin
