Town and country planning – Planning permission – Variation – Replacement dwelling constructed in breach of planning permission – Interested party applying to vary permission to permit as-built scheme or alternative scheme – Defendant local planning authority granting variation considering demolition of original dwelling lawful implementing original permission within time limit – Claimant applying for judicial review – Whether decision to grant variation unlawful – Application granted
In 2018, the local planning authority granted planning permission to the interested party for the construction of a replacement dwelling on the site of the existing structure (the application site) which required the development to begin within three years.
The claimant occupied a property known as Bluebell Cottage, Godshill Wood, Fordingbridge. The property lay directly to the north and uphill of the application site. Both properties lay within a wooded area which was part of a protected conservation area. Both sites were subject to a policy preventing the erosion of rural darkness and tranquillity through artificial lighting.
Since 2020, the claimant had raised concerns about the development, In 2021, the defendant local authority served an enforcement notice on the interested party confirming that the new dwelling differed from the approved plans and requiring the dwelling and an outhouse to be demolished and the site cleared. An application for retrospective planning permission was refused.
The interested party appealed against the enforcement notice and applied, under section 73 of the Town and Country Planning Act 1990, to vary the planning permission to permit the as-built scheme or an alternative scheme.
The defendant took the view that the original permission remained extant as the demolition of the original dwelling had amounted to lawful implementation of that permission within the requisite three-year period. In 2021, it granted the variation which permitted an alternative scheme, subject to the agreed alterations being made within two years.
The claimant applied for judicial review contending, amongst other things, that contrary to section 73(5) of the 1990 Act, the development for which permission was granted in 2018 had not lawfully begun within the requisite time. Therefore, the permission had lapsed and the 2021 variation unlawfully extended the time for development.
Held: The application was granted.
(1) When determining if development had commenced, pursuant to section 73(4) of the 1990 Act, the operations relied on had to be ones which could properly be said to be undertaken pursuant to the grant of the planning permission in question. No coherent reason had been advanced for why the determination of the commencement of development for the purposes of section 73(4) should be any different from other situations arising under the town and country planning legislation. The determination did not depend upon the issue of whether the development authorised by the 2018 permission could be implemented or “built out”.
(2) The claimant had relied on case law concerning the operation of section 191 of the 1990 Act, whereby an application might be made for a certificate of lawful use or development: see East Dunbartonshire Council v Secretary of State for Scotland [1999] 1 PLR 53 and Commercial Land Ltd v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 1264 (Admin).
There no reason why the cases concerning certificates under section 191 of the 1990 Act should have no bearing on a decision taken under section 73. It would be highly anomalous if a decision on the commencement of development for the purposes of section 73 could be taken on an entirely different basis from that of decisions concerning certificates of lawful use and development. Accordingly, the reliance of the defendant upon the demolition works alone was unlawful. The defendant could not, at this point, defend the decision by belatedly relying upon the contention that the 2018 permission was “in part retrospective”, in that it covered the installation of a sewage treatment plant or septic tank. In any event, treating the sewage treatment facilities as referable to the dwelling authorised by the 2018 permission suffered from the same problem as the defendant’s reliance upon the demolition. Neither was properly referable to the construction of that dwelling, which took place in breach of planning control, such that there was now an enforcement notice which required demolition and levelling of the site.
(3) In so far as the defendant contended that, at the time the interested party carried out the demolition, she might not have been intending to carry out unauthorised development, the contention was inconsistent with East Dunbartonshire decision which was persuasive. The test had to be an objective one. It would be particularly undesirable to attempt to introduce into the statutory scheme requirements which were not capable of reasonably precise definition. A requirement that the specified operation should be undertaken with some sort of intention in regard to the carrying out of the development would be extremely difficult to define and apply.
The condition imposed upon the 2021 variation, which extended the implementation period by a further two years, was contrary to section 73(5). Although it purported to refer solely to “amendments” to a building, the 2018 permission was not implemented. That meant the works that were the subject of the 2021 variation represented development which required lawful commencement. In purporting to allow those works to take place, whether by way of amendments or otherwise, the defendant had unlawfully purported to allow the development to commence beyond the relevant three-year time limit imposed by the 2018 permission: East Dunbartonshire and Commercial Land considered.
(4) An application under section 73 would not founder merely because the proposed change involved more than a “minor material amendment”. Nor would it necessarily founder if the proposed change involved a fundamental variation to the design of a single dwelling on the site that was otherwise permitted by the operative part of the planning permission. However, section 73 could not be deployed if the result would be to change the “operative part” or the “grant” of permission; ie, the description of the development contained in the grant: Finney v Welsh Ministers and others [2019] EWCA Civ 1868; [2019] EGLR 56 and Armstrong v Secretary of State for Levelling Up, Housing and Communities and another [2023] EWHC 176 (Admin); [2023] PLSCS 21 considered.
Unlike the “operative part” of the 2018 permission, the wording of the 2021 variation referred to “details of lighting”. There was, thus, a difference in the “operative parts” or descriptions. That difference was not de minimis or otherwise immaterial.
Celia Colquhoun (instructed by Addleshaw Goddard) appeared for the claimant; Poonam Pattni (instructed by the New Forest National Park Authority) appeared for the defendant; The interested party appeared remotely but did not participate in the hearing.
Eileen O’Grady, barrister
