Planning permission – Change of use – Conditional planning approval – Claimant applying under section 73 of Town and Country Planning Act 1990 for permission to make the change of use permitted without complying with conditions – Defendants declining to entertain application – Claimant applying for judicial review – Whether application under section 73 being valid where relating to conditions subject to which prior approval granted – Application granted
The claimant and the interested party applied to the defendant local authority for a determination under the Town and Country Planning (General Permitted Development) Order 1995 whether prior approval was required before making a change in the use of the ground, first and second floors of 11A Hannell Road, London SW6 from an office into three self-contained residential flats. By virtue of section 17(2)(b) of the Interpretation Act 1978, that application fell to be treated after 15 April 2015 (when the 2015 Order came into force) as an application made for such a determination under Class O of Part 3 of Schedule 2 to the 2015 Order which comprised “development consisting of a change of use of a building and any land within its curtilage from a use falling within Class B1(a) (offices) of the Schedule to the Use Classes Order, to a use falling within Class C3 (dwellinghouses) of that Schedule”.
The defendants granted prior approval for the change of use of the premises subject to fourteen conditions some of which required the submission, approval and implementation of schemes to deal with various matters. The claimant and the interested party then applied under section 73 of the Town and Country Planning Act 1990 for permission to make the change of use permitted without complying with eight of those conditions. If permission was granted under section 73, it constituted a new permission and left the original permission unamended. Advantage could then be taken of either: see R v Coventry City Council ex parte Arrowcroft Group Limited [2001] PLCR 7, per Sullivan J at paragraph 22.
The defendants decided that the application was invalid as it was not one that could be entertained under section 73 of the 1990 Act, given that it related to conditions subject to which prior approval had been granted. The claimant applied for judicial review of that decision. The issue was whether an application might be made under section 73 for the grant of planning permission for the development of land without complying with the conditions subject to which a prior approval was granted for development permitted by virtue of a development order made by the secretary of state.
Held: The application was granted.
(1) Section 73 was concerned with the development of land without complying with “conditions subject to which a previous planning permission was granted”. Any conditions imposed by the local authority were described as those subject to which the grant of prior approval, not the grant of the permission itself, was subject. However, if the prior approval was granted subject to conditions, it did not mean that such conditions were not conditions subject to which the Class O planning permission was granted. Planning permissions were granted subject to such conditions as might be imposed when either the permission or any subsequent required approval was granted.
(2) Parliament had manifestly distinguished between the grant of permission and the grant of approvals required by a condition, as section 78(1) of the 1990 Act was of itself sufficient to demonstrate, and the scope of what might be taken into account when considering whether or not to grant such an approval was more constrained than it was, for example, when considering whether or not planning permission should be granted. When considering whether to grant approval, the principle of development was not normally for consideration: see Murrell v Secretary of State for Communities and Local Government [2010] EWCA Civ 1367, [2010] PLSCS 308.
(3) It made no difference in principle whether the approval granted subject to a condition was one required by a condition imposed by a planning authority on the grant of a planning permission or one required by a condition imposed on the grant of planning permission by a development order made by the secretary of state. In each case the planning permission was granted subject to any conditions that might be imposed on the required approval. Once imposed, it was a condition subject to which planning permission had been granted. Class O permission was granted by the development order itself, not by the prior approval. The case was no different in principle from a planning permission granted by a planning authority subject to a condition requiring the subsequent approval of certain matters: the permission was granted when that condition was imposed, not when all such matters were approved: R (Orange Personal Communications Services Limited) v Islington LBC [2006] EWCA Civ 157, [2006] PLSCS 11 and Murrell v Secretary of State for Communities and Local Government [2010] EWCA Civ 1367, [2010] PLSCS 308 distinguished.
(4) Just as a conditional approval of reserved matters on an outline permission meant that the permission was granted subject to the conditions thus imposed, so equally the permission granted by Class O which was defined by the details that were approved by the authority was subject to the conditions subject to which that approval was granted. Section 73 of the 1990 Act fell within a sub-division of Part III entitled “determinations”. Its application was not limited in terms, nor was there a basis for reading any such limitation into section 73 where it did not appear. Any uncertainty as to the land to which any permission granted under section 73 related, or the precise description of the development permitted, could be resolved by the use of appropriate conditions imposed on the grant of permission. A local planning authority could grant planning permission on an application under section 73 subject to a condition which was not the subject of the application: their discretion as to what conditions to impose was not constrained by it: see R v Leicester City Council ex parte Powergen UK Plc [2000] PLSCS 116; (2001) 81 P&CR 5.2000.
(5) Finding that an application might be made under section 73 for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted by a development order did not mean that the local planning authority were obliged to grant it. They were obliged to refuse it if they decided that it should be granted subject to the same conditions. Ultimately, the question whether the application should be granted unconditionally or subject to conditions differing from those to which the permission under the development order was granted, including those imposed when granting any required prior approval, was one for the local planning authority.
(6) Accordingly, an application might be made under section 73 for the development of land without complying with conditions subject to which a previous planning permission had been granted by a development order. The conditions included those subject to which any prior approval required under the development order was granted. Planning permissions were granted subject to such conditions as might be imposed when either the permission or any subsequent required approval was granted. Accordingly, the defendants had erred in law when refusing to treat the claimant’s application as a valid application under section 73.
Sarah Clover (instructed by Wilkes Partnership LLP) appeared for the claimant; Tim Burley (instructed by Hammersmith and Fulham London Borough Council) appeared for the defendants.
Eileen O’Grady, barrister
Click here to read transcript: Pressland v Hammersmith and Fulham London Borough Council