Development of land — Area of natural beauty — Outline planning permission — Planning authority imposing time limit on application for approval of reserved matters — Whether inspector erring in law by retaining original approval conditions — Claim dismissed
In 1997, the claimant was granted outline planning permission (OPP) for residential development of a site of natural beauty subject to certain conditions. Condition 3 provided that application for approval of reserved matters should be made no later than three years from the date of the permission, that is, 4 November 2000. The claimant applied for approval on 7 September 2000. This was refused by the second defendant national park authority on 2 September 2003. The claimant’s appeal against that refusal was dismissed by an inspector appointed by the first defendant (appeal B).
On 14 July 2003, the claimant applied, under section 73 of the Town and Country Planning Act 1990, to remove certain conditions attached to the 1997 permission. No application was made to vary condition 3. The section 73 application was refused on 2 September 2003, but the inspector allowed the claimant’s appeal in part, granting OPP for residential development in accordance with the 1997 permission without compliance with condition 8 (concerning height restrictions on the proposed dwellings) but subject to the other conditions, including condition 3 (appeal A).
The claimant applied, under section 288 of the 1990 Act, to challenge the inspector’s decision on appeal A, contending that the inspector had erred in law in retaining condition 3 on the fresh planning permission and that he should have imposed new conditions under section 92 of the 1990 Act.
Held: The claim was dismissed.
In the circumstances, it would be inappropriate to quash the inspector’s decision, which was consistent with the statutory scheme under section 73.
Although the effect of allowing an appeal on a section 73 application was to grant OPP, it was wrong to suggest that section 92 necessarily imposed new time limits on that permission. Section 92 was intended to ensure that OPP was subject to deemed time limits where such conditions were not expressly imposed by the planning permission itself, and it need not apply where any new permission retained the original time limit conditions: R v Leicester City Council, ex parte Powergen [1999] 4 PLR 91 considered.
Where an application under section 73 was successful, it remained subject to any conditions attached to the original planning permission for which variation or removal had not been sought. In the present case, the claimant had not requested the removal of condition 3, and the inspector was entitled to reach his decision on the material before him. Put at its highest, the claimant’s complaint was that he had obtained planning permission that was useless, but for which he had asked, when he should instead have received a refusal.
The inspector had clearly dismissed appeal B on the ground that the development would seriously harm the natural beauty of the area and the living conditions of the adjoining occupiers. In the light of those findings, even if he had erred in relation to appeal A, the inspector should have refused planning permission and dismissed the appeal.
Ian Albutt (instructed by DMH Stallard, of Brighton) appeared for the claimant; James Strachan (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendant did not appear and was not represented.
Eileen O’Grady, barrister
