Town and country planning – Planning permission – Town and country planning – Planning permission – Condition – Variation – Defendant local authority granting planning permission for sports and leisure complex with 12-screen cinema – Defendants varying planning condition under section 73 of the Town and Country Planning Act 1990 to include 13-screen cinema – Claimant cinema operator applying for judicial review of variation – Whether variation making development substantially different from original – Application dismissed
The defendant local planning authority granted planning permission to developers to build a large sports stadium and leisure development in York, to be known as the York Community Stadium. A condition of the planning permission was that it should be implemented on the basis of identified plans, which included a 12-screen cinema with a capacity of 2,000. The defendants subsequently approved their application to vary the permission to allow them to build a 13-screen, 2,400-person cinema complex, increasing the floorspace by 80%. The application was made under section 73 of the Town and Country Planning Act 1990 which dealt with the determination of applications to develop land without compliance with conditions previously attached.
The claimant, a multiplex cinema operator, operated a cinema in York city centre. It was concerned about the adverse impact the development would have on its business and on the city centre, which it contended would receive fewer visitors as a result. It applied for judicial review of the decision to permit the variation. It contended that the defendants did not have the power to add another screen as an amendment to the condition because the new screen made the cinema substantially different from the original proposal. The variation could not be classified as a minor amendment to the planning permission that had been granted. In the light of the decision in R v Coventry City Council, ex parte Arrowcroft Group plc [2001] PLCR 7, the application under section 73 was unlawful. The amendment of the condition, which entailed an 80% increase in cinema floor space and a 20% increase in seats, would make the effect on the claimant much greater and constituted a fundamental change to the planning permission.
Held: The application was dismissed.
(1) Section 73 of the 1990 Act made it clear that a planning authority faced with an application to vary a permission had to consider only the question of the conditions subject to which planning permission should be granted. Although it was also entitled to consider generally the circumstances that led to the original grant of permission. In Arrowcroft, the High Court ruled that a planning authority had no power to vary conditions in such a way as to radically alter the nature of the permission. However, the decision in that case did no more than make the point that it was not open to a planning authority to vary a condition if the variation changed the precise terms of the permission. In the present case, the change to the condition did not alter the permission itself. The permission had not mentioned or defined the size of cinema. The claimant’s submission that it was a fundamental change was a reflection of only the part of the permission that pertained to the cinema. There was nothing in the original planning permission for the stadium project that limited the number of screens or the floor space of the cinema. The only limitations to be found in the permission limited the number of seats in the sports stadium itself to 8,000 and also limited the overall footprint of the projects. Had the defendants altered one of those stipulations using an amendment, they might have been construed to have acted outside of their power.
(2) It was necessary to look at the permission as a whole. Section 73 did not in terms limit the extent of the amendment of conditions. Although there could be a change in conditions that was so big that it fundamentally affected the permission, it was not necessary to consider that situation as that was not the present case. It was obvious that, if there was going to be a change that affected objectors, there had to be proper notification and consultation, and an ability to make representations. The development in this case had required an environmental impact assessment; therefore there needed to be, and had been, a supplementary report. It followed that there was no prejudice to the claimant which had been notified of the application and had made representations. Therefore the position was the same as if there had been a fresh planning application. There had been a clear power for the defendants, as local planning authority, to grant the application. In all the circumstances, the court was entirely satisfied that the defendants had not acted in an unlawful manner.
Robert Walton (instructed by Irwin Mitchell) appeared for the claimant; Timothy Straker QC (instructed by the City of York Council) appeared for the defendants.
Eileen O’Grady, barrister
