Town and country planning – Planning permission – Reserved matters – Claimant appealing against refusal of permission to seek judicial review of planning decision by respondent local planning authority – Whether statutory power to make non-material changes to planning permission included power to make non-material changes to conditional approvals of reserved matters – Appeal dismissed
Following a public inquiry and an inspector’s report, on 9 May 2007 the secretary of state granted outline permission for residential development of approximately 700 dwellings and associated works on land at Germany Beck, Fulford, York subject to conditions. Many of those conditions required matters to be subsequently approved by the local planning authority.
The appellant parish council was opposed to the scheme, and had mounted a number of unsuccessful challenges to it (including an unsuccessful attempt to register the site as a historic battlefield). In February 2012, the respondent local planning authority received an application for approval of reserved matters relating to details of appearance, landscaping, layout and scale of 655 dwellings. It granted approval in May 2013 and stated that no development was to take place until a detailed bat mitigation strategy and method statement had been submitted to and approved in writing by the respondent.
In April 2015, the respondent approved a bat mitigation strategy which provided a timetable for implementing the various measures. In October 2018, the respondent approved a further application described as “non-material amendments” to alter approved plans and amend the bat mitigation strategy. By that time, the planning permission had been implemented, in the sense that the overall scheme of development had begun.
The appellant appealed against the refusal of permission to apply for judicial review. It contended that section 96A of the Town and Country Planning Act 1990 (which conferred on local authorities the power to make changes to conditional approvals of reserved matters) did not empower the defendant to make that decision. The statutory power was limited to making non-material amendments to a “planning permission”; and an approval of reserved matters was not a “planning permission”.
Held: The appeal was dismissed.
(1) The primary source of the power to grant planning permission was contained in section 70(1) of the 1990 Act, which provided that a local planning authority could grant permission unconditionally or subject to conditions. The conditional grant contemplated by section 70(1)(a) was of planning permission “subject to” conditions. The grant of outline planning permission was the grant of planning permission as defined by the Act. As the grant was “subject to” conditions, they had to be seen as an intrinsic part of the grant. The conditional approval of reserved matters was itself a condition subject to which the planning permission had been granted. The appellant’s argument that there was no power to approve reserved matters subject to conditions was wrong: R (Stevens) v Newbury District Council [1992] 3 PLR 34 and Pressland v Hammersmith & Fulham London Borough Council [2016] EWHC 1763 (Admin); [2016] PLSCS 207 applied.
(2) The “planning permission” to which section 96A referred was the package consisting of the grant of planning permission itself, together with any conditions to which the grant was subjected, whether the conditions were imposed at the time of or subsequent to the grant of permission. An application for an amendment to an approval (or conditional approval) of reserved matters was an application for the alteration of an existing condition; which was expressly permitted by section 96A(3)(b). The power under section 96A was restricted to non-material changes. It followed that a change in approved reserved matters could have no material impact. There was no policy objection to that interpretation.
(3) It seemed to be clear from section 96A(2) (which required the planning authority to consider “previous changes” made under section 96A(1)), that the section specifically contemplated sequential changes. Provided that the initial application for approval of reserved matters was made within the time limit imposed by the Act, there was no good reason for outlawing non-material changes made later. Moreover, if (as in the present case) some matters that could have been dealt with at the outline permission stage as reserved matters, had in fact been given full approval, it made no sense for a local planning authority to have power to make non-material changes to those matters but not to matters that had been reserved but subsequently approved. Although public participation in environmental decision-making was important, section 96A concerned situations in which the environmental decision had already been taken, with the public participation that was required. The power under section 96A was confined to changes which were not material. The need for public participation in non-material changes was not so pressing: Inverclyde District Council v Secretary of State for Scotland (1982) 43 P&CR 375 followed.
(4) Section 73A of the Act provided that, on an application made to a local planning authority, the planning permission which might be granted included planning permission for development carried out before the date of the application. The appellant contrasted section 73A with section 96A which contained no wording expressly permitting a retrospective amendment. However, when a successful application was made under section 73A, it resulted in the grant of planning permission which did not exist before. In the present case, the planning permission (taken as a whole) had already been granted. The effect of the exercise of the power conferred by section 96A was merely to make a non-material amendment to an existing planning permission. The two sections were concerned with entirely different circumstances. One of the purposes of section 96A was to formalise minor differences between approved layout plans and “as-built” development. That used to be dealt with informally by planning officers; and principles of private law (such as estoppel) would be relied on to validate their representations. But that possibility was, for all practical purposes, brought to an end by the House of Lords in R (Reprotech (Pebsham) Ltd) v East Sussex County Council [2002] UKHL 8; [2002] 2 PLR 60. A statutory power to achieve the same results was needed and section 96A filled that gap. In any event, on the facts of the present case, the power was not being used retrospectively. The bat mitigation strategy had yet to be put in place fully. Development had begun in order to comply with the time limit imposed by section 92 but it did not mean that the whole of the permitted development had been “carried out” as that expression was used in section 73A: Lever Finance Ltd v Westminster City Council [1971] 1 QB 222 and Reprotech (Pebsham) Ltd considered.
Killian Garvey (instructed by Shoosmiths LLP) appeared for the appellant; Jonathan Easton (instructed by City of York Legal Services) appeared for the respondent; Giles Cannock QC (instructed by Walker Morris LLP) appeared for the interested party.
Eileen O’Grady, barrister
