A local planning authority (LPA) has the power, under section 97 of the Town and Country Planning Act 1990, to revoke or modify a planning permission where it considers it expedient to do so. In the case of operational development, it may do this at any time before the operations are completed. The revocation or modification will not affect any building or other operation carried out before the coming into force of the revocation or modification order. When deciding whether to make an order, the LPA must have regard to the development plan and to any other material considerations.
When contemplating such a step, however, the LPA must be mindful of the fact that any person interested in the land will be entitled to claim compensation from the LPA under section 107. For instance, in Alnwick District Council v Secretary of State for the Environment, Transport and the Regions [1999] 4 PLR 43, the estimated amount of compensation was £4m. A crucial question, therefore, is whether the potential liability to pay compensation is a material consideration for the purposes of section 97.
In Health and Safety Executive v Wolverhampton City Council [2010] EWCA Civ 892; [2010] PLSCS 224, a developer had sought planning permission to build four blocks of student flats on a site located within 100m of a liquefied petroleum gas facility. The LPA consulted the Health and Safety Executive and was advised against granting planning permission on grounds of safety. Nevertheless, it did so, thereby depriving the HSE of an opportunity to ask the secretary of state to call in the application. The HSE tried unsuccessfully to persuade the LPA to revoke or modify the planning permission, and in a subsequent claim for judicial review it challenged, among other things, the LPA’s refusal to do so.
The question of whether liability to pay compensation was material to the exercise of the LPA’s power to revoke or modify the planning permission came before the Court of Appeal. The HSE contended that it was not, relying on the approach taken by the High Court in Alnwick. By a majority, the Court of Appeal held that Alnwick was wrongly decided on this point and that the LPA had been entitled to take into account the fact that compensation would be payable. Sullivan LJ concluded that decisions under section 97 were not intended by parliament to be taken in a vacuum but within a statutory framework that required compensation to be paid if an order were made.
John Martin is a freelance writer
