Town and country planning — Lawful use certificate – Conditions – Appellants failing to comply with pre-conditions in planning permission for construction and occupation of houses – First appellant’s application for variation of conditions resulting in grant of planning permission by inspector subject to new conditions – Appellants not complying with new conditions – Whether appellants entitled to lawful use certificate for houses on ground that enforcement action no longer possible – Whether decision of inspector on earlier appeal resulting in retrospective planning permission conditions of which still capable of enforcement – Appeal dismissed
In 2004, the second respondent council granted planning permission for the construction of two houses on land in Pontefract, West Yorkshire, subject to conditions which required a scheme of works for the provision of a road and pedestrian footway to be submitted to and approved before development began and prohibited occupation of the houses until those works had been carried out. The first appellant company, of which the second appellant was a director, built the houses without complying with those conditions and then sold one of the houses to the second and third appellants, who occupied it as their home.
The second respondents refused an application for variation or removal of the conditions. In 2010, the first respondent’s planning inspector allowed the first appellant’s appeal against that decision and granted planning permission for the houses without compliance with the original conditions, but with new conditions requiring the submission of a scheme of works for approval within one month and requiring the approved works to be carried out within three months.
Although the appellants obtained approval for a scheme of works, those works were not carried out. In May 2011, the second respondents served a breach of condition notice on the first appellant. Meanwhile, in February 2012, the appellants had applied to the second respondents for lawful development certificates in respect of the houses, which they contended were now lawful by virtue of section 191 of the 1190 Act, having become immune from enforcement action on expiry of the applicable four-year limitation period. The second respondents granted lawful use certificates but only on the basis of the permission granted by the inspector on the 2010 appeal; they took the view that the 2010 appeal decision amounted to the grant of retrospective planning permission for the houses, under sections 73A of the Town and Country Planning Act 1990, and that the conditions attached to that permission remained enforceable. That decision was upheld by a further planning inspector on appeal and by the court in proceedings under section 288 of the 1990 Act: see [2013] EWHC 3368 (Admin); [2013] PLSCS 291.
The appellants appealed. They submitted that the 2010 decision could not be construed as a grant of, retrospective planning permission under section 73A since all they had applied for was variation of the original conditions under section 73.
Held: The appeal was dismissed.
The development for which the first appellant sought planning permission in 2010 had already been completed in breach of the 2004 permission. Since the development had been completed, the existing breach of the pre-conditions in the 2004 permission was irremediable. There remained no proposed development in respect of which any permission could be given and any conditions, as varied, could only be imposed as a current obligation. New conditions could not be grafted on to the 2004 permission. That was not how section 73 of the 1990 Act worked; instead, on considering the application the local planning authority had to either grant a new permission with no conditions or different conditions, or refuse the application altogether. Since the first appellant was seeking permission not for a proposed development but for a completed development, it followed that any fresh planning permission for the development, whether granted conditionally or unconditionally, had to be retrospective in its effect.
Accordingly, the first appellant could only achieve what it wanted by a grant of planning permission retrospectively subject to revised conditions imposing current obligations for the completion of the scheme of works. Since any grant of planning permission consequent on the first appellant’s application had to be retrospective in its effect, the power to make the grant was derived from section 73A.
Section 73A created a general power to grant planning permission retrospectively. There was no question of the inspector improperly “re-classifying” the first appellant’s application by granting such a permission on the 2010 appeal. It was implicit that if the appeal was to be successful, the source of the power to grant permission would have to come from section 73A. It was unnecessary for the inspector to spell out the source of his power to grant the permission sought, provided that the power existed. The inspector was entitled to proceed on the footing, without further reference to the parties, that the first appellant was seeking to cure a flagrant breach of planning control by obtaining retrospective permission with less onerous conditions.
Although an application for retrospective planning permission under section 73A would often require engagement with wider planning considerations than those raised by a reconsideration of conditions imposed on an existing permission under section 73, the terms of section 73A(2) provided scope for wider or narrower examination of the planning merits depending on the nature and stage of the development and the circumstances of the application. In the instant case, neither the second respondents nor any objector were taking issue with the planning merits of the proposal to erect two houses and the only concern was the completion of the road works. The issues placed before the inspector concerned the policy requirements of highway access to the properties that had already been constructed. In those circumstances, no wider consideration of the planning merits was required.
The appellants could simply choose to ignore the 2010 permission. They had obtained what they applied for and the 2010 permission was valid and took immediate effect. Since the development had been completed, an automatic consequence of the successful application for permission was that the permission had been implemented.
Peter Goatley (instructed by Lawsons Solicitors, of Wakefield) appeared for the appellants; Gwion Lewis (instructed by the Treasury Solicitor) appeared for the first respondent; John Hunter (instructed by the legal department of Wakefield Metropolitan District Council) appeared for the second respondents.
Sally Dobson, barrister
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