Council granting planning permission subject to conditions – Application to modify conditions – Whether council, when considering whether to modify conditions, should take into account facts and policies at time of application to modify or at time conditions imposed – Application refused – Appeal dismissed
On 25 January 1995 the first respondent council granted outline planning permission to the appellant, Powergen UK plc, for redevelopment of a site of approximately 15 ha for retail use (Class A1), business use (Class B1), petrol filling station (sui generis), public house/restaurant (class A3) and public open space. In reliance upon the planning permission, the appellant undertook: (i) the demolition of a former power station on the site; (ii) the remediation of the site; (iii) the decontamination of the site; (iv) the construction of a road link; and (v) the payment of a licence fee, at a total cost of £5.7m.
The permission was subject to a number of conditions, inter alia, condition 1, to make an application for approval of reserved matters before 25 January 1998, and condition 2, to submit “detailed plans and particulars of the siting, design and external appearance and means of access to the development, and the landscaping of the site” before the start of development. Matters proceeded slowly and the appellant realised that unless it secured a relaxation of the conditions, it might be unable to develop the site. Accordingly, on 8 January 1998, it submitted an application for approval of reserved matters relating to only that part of the site that was to be developed as a food superstore, with a petrol filling station, and car park with landscaping and public open space. The appellant did not submit an application for approval of reserved matters in relation to the remainder of the site.
On 3 August 1999 the appellant made a further application, under section 73 of the Town and Country Planning Act 1990, to vary condition 2, and for consequential variations of other conditions. The effect of granting the application would have been to enable the “reserved matters” referred to in condition 1 to comprise only those relating to the food superstore, and not all the matters relating to every part of the site.
The council dismissed the application to vary condition 2 and refused planning permission for the section 73 application. The appellant sought judicial review of the council’s refusal to vary condition 2. The judge dismissed the application: see [1999] EGCS 130. The appellant appealed, contending that the council were not entitled to refuse a section 73 application simply because they now disapproved of an earlier permission that they, or the Secretary of State, had granted in respect of the land. It was argued that to refuse an application for such a reason would be to exercise the power of refusal for an impermissible purpose, namely, to prevent, without paying compensation, the implementation of a permission that had been lawfully granted.
Held: The appeal was dismissed.
1. When considering whether to grant planning permission for the development of land under a section 73 application, without complying with conditions subject to which a previous planning permission had been granted, the relevant authority had to consider the provisions of the development plan and other material considerations in the light of the facts and policies at the time of the decision on the application: PyevSecretary of State for the Environment [1998] 3 PLR 72, approved.
2. The council had acted rationally in rejecting the application under section 73 and refusing to grant a new permission, subject to a different condition 2, given that their planning policies had changed. The original conditions had been imposed in pursuance of the policy set out in section 92 of the Act, which had been to prevent the accumulation of unimplemented permissions. The application was clearly at variance with that policy. Moreover, it would have been unlawful for the council to have granted a permission pursuant to the application without considering that a food superstore, at the time of the application, was governed by different policies from those which appertained in 1995.
John Taylor QC and Vincent Fraser (instructed by Wragge & Co, of Birmingham) appeared for the appellant; Tobias Davey (instructed by the solicitor to Leicester City Council) appeared for the first respondent; Duncan Ouseley QC and Michael Redman (instructed by Clifford Chance) appeared for the interested party, Safeway Stores plc.
Thomas Elliott, barrister
