In Pressland v London Borough of Hammersmith and Fulham [2016] EWHC 1763 (Admin), the High Court considered whether Section 73 of the Town and Country Planning Act 1990 (TCPA 1990) can be used to modify conditions on a prior approval for development permitted by the Town and Country Planning (General Permitted Development) Order 2015 (GPDO).
Class O GDPO permits changes of use from Class B1(a) (office) to Class C3 (dwellings) on condition (Paragraph O.2) that confirmation of the need for ‘prior approval’ (relating to transport/ highways, contamination, flooding and noise issues) is sought. The authority may impose conditions on any prior approval (under Paragraph W(13)). ‘Limitations’ require accordance with details approved by the LPA (unless agreed otherwise) or, where prior approval is declined or timed out, those submitted (Paragraph W(12).
The authority required prior approval for the claimant’s Class O change of use and gave it, subject to 14 conditions. The claimant applied to modify eight under Section 73 TCPA 1990, which allows applications for planning permission for the development of land without complying with conditions “subject to which a previous planning permission was granted“. The authority refused to process the application on the basis that S.73 does not permit modifications to prior approval conditions. The claimant challenged, on the basis that the conditions had been imposed on the grant of permission under Class O and the prior approval had only procedural status.
His Honour Judge Howell QC accepted that the prior notice procedure simply discharges a condition on the Class O permission, but held that “just as a conditional approval of reserved matters on an outline permission means that the permission is granted subject to the conditions thus imposed, so equally in my judgment the permission granted by Class O which is defined by the details that are approved by the authority is subject to the conditions subject to which that approval was granted.” Section 73 applies to all forms of planning permission within Part III of the 1990 Act, he held, and so the claimant’s application should have been entertained.
The judgment opens the door to S.73 modifications (and so appeals) of unnecessary prior approval conditions (albeit recognising wider conditions may be imposed under S.73 than on prior approval). It also appears to offer a route to seeking revised reserved matters approvals (RMA) when the time for doing so has expired. RMA are not planning permissions and so S73, on its face, does not apply, but if conditions imposed on an RMA are a ‘condition on the grant of planning permission’, S.73 would arguable be capable of use against the combined outline and RMA to create a single new permission.
Roy Pinnock is a partner in the planning and public law team at Dentons
