Planning permission – Conditions – Removal – Permission for holiday bungalows subject to condition preventing use for permanent residential occupation – Claimant applying to remove condition in respect of his bungalow – Application refused – Section 73A of Town and Country Planning Act 1990 – Whether application properly regarded as applying to entire site comprised in earlier planning permission rather than claimant’s bungalow only – Relevance of unenforceability of condition owing to non-compliance of original development with planning permission – Claim dismissed
The claimant owned a holiday bungalow in a holiday village that had been built pursuant to a planning permission granted in 1986. The permission, which allowed the construction of 237 bungalows, was subject to a condition that required the bungalows to be used for holiday purposes only and not for permanent residential occupation. In 2006, the claimant applied to the second defendant council to remove the condition so far as it applied to his bungalow. His application took the form of an application, under section 73A of the Town and Country Planning Act 1990, for the development of land without complying with a condition to which a previous planning permission was subject. The second defendants refused the application and the claimant appealed to the first defendant secretary of state.
The inspector dismissed the appeal, which he characterised as seeking planning permission for the erection of 237 holiday bungalows without complying with a condition attached to the 1986 permission. The claimant maintained that this was incorrect since his application did not relate to all the bungalows but was confined to his own.
The claimant brought proceedings, under section 288 of the 1990 Act, to challenge the inspector’s decision. He contended that the condition was unenforceable and that, applying the government guidance in Circular 11/95, the inspector should have taken that matter into account. He submitted, in reliance upon Handoll v Warner Goodmand & Streat [1995] 1 EGLR 173; [1995] 25 EG 157, that: (i) since several bungalows had been built in the wrong place within the development site shown in the plan for the 1986 permission, and some were outside that area altogether, the development did not accord with the 1986 permission; (ii) it was therefore an unlawful and unauthorised development upon which the condition could have no effect; and (iii) although the second defendants could have served an enforcement notice preventing any use of the development, not only a use that breached the condition, it had become immune from enforcement action owing to the lapse of time.
Held: The claim was dismissed.
(1) The inspector had properly characterised the claimant’s application as being for the removal of the condition from the entire development identified in the 1986 planning permission. If the section 73A route were adopted, any change to the previous permission had to mirror the original grant, since the grant pertained to the entire land that was the subject of the planning permission, and not just a particular plot. A section 73A application was not merely to “remove” a condition imposed on an earlier planning permission, but was an application for retrospective planning permission to continue the use of the land without compliance with that condition: Wilkinson v Rossendale Borough Council [2002] EWHC 1204 (Admin); [2003] JPL 82 applied.
(2) The inspector had correctly considered that the compliance or otherwise of the development with the 1986 permission and its conditions was irrelevant to the claimant’s appeal. Circular 11/95 was directed to the question, arising on a section 73A application, of whether conditions should be imposed on the grant of planning permission, and discouraged the imposition of conditions in terms that would, in practice, be difficult or impossible to enforce during the period when enforcement proceedings could be taken. It did not address the situation in which an otherwise valid and enforceable condition had ceased to be enforceable because the time for enforcement had expired, or in which the condition was irrelevant from the outset because the development was unauthorised, as in Handoll. Although a section 73A application might be made in a situation where planning control had already been breached, neither that, nor the failure of the local planning authority to take any steps to remedy it, were relevant considerations when determining whether to grant permission on different terms. The fact that someone had flouted planning control in the past was no good reason to remove a condition that was otherwise justifiable.
The claimant appeared in person; Lisa Busch (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendants did not appear and were not represented.
Sally Dobson, barrister
