What are the powers of a local planning authority to revoke an existing planning permission?
The revocation (or modification) of an existing planning permission becomes a possibility and, perhaps, a necessity, if an error has been made in granting the permission or if a change of policy has rendered the permission out of date.
The power to revoke or modify a planning permission is contained in section 97 of the Town and Country Planning Act 1990. This section makes it clear that (as with the decision whether to issue an enforcement notice) the criterion is one of expediency, although there is a legal obligation to have regard to the terms of the development plan and to any other material considerations. (One of the material considerations will be the obligation of the local planning authority to pay compensation, a consideration which does not normally arise in enforcement proceedings.)
Unless the owner and occupier of the land, and all other persons affected by the order, have notified the local planning authority that they do not object to the order, the order (known as a “revocation order” or a “modification order”) will not become effective unless and until the Secretary of State for the Environment confirms it, with or without modifications.
There is a right of appeal to an inspector appointed by the Secretary of State prior to his decision whether to confirm or modify the order.
Previous operations
The power to revoke or modify a planning permission can be exercised only before the operation in question has been carried out, or (if the permission relates to a change of use) before the change of use in question has been carried out.
If a revocation order or modification order is issued (and confirmed) during the progress of any building works, the revocation or modification of the planning permission will not affect the legality of the work already carried out, prior to the confirmation of the order.
If a local planning authority wishes to revoke or modify an existing planning permission so as to require the demolition of a building, which has been erected in accordance with the terms of that planning permission, the correct procedure will be to issue a “discontinuance order” under section 102 of the Town and Country Planning Act 1990. Such an order will (if confirmed by the Secretary of State) require the owner and/or occupier of the land to discontinue any use of the land (for example, an established use) or it will require him to remove (or alter) buildings or works which are standing on the land. Naturally, if the use in question is not an established use (and is not permitted by an existing planning permission) there will be no need to use a discontinuance order: much the same result will be achieved by issuing an enforcement notice, without the concomitant need to pay any compensation to the developer. Likewise, if the building which has been erected, or the works which have been undertaken, have been put on the land without the benefit of planning permission, an enforcement notice will be the appropriate method of securing their removal, once again without the need to pay any compensation.
If the local planning authority is not desirous of discontinuing a lawful (or established) use altogether, but wishes to impose conditions on the future continuation of that use, they may use a discontinuance order for this purpose also. (Compensation will, however, be payable to the person or persons adversely affected by the order. There is a right of appeal to an inspector against a discontinuance order in the same way as there is against a revocation or modification order.
Compensation
The right to compensation in the case of a revocation or modification order is contained in section 107 of the Town and Country Planning Act 1990. This right extends to:
(a) any expenditure incurred in carrying out abortive work; and
(b) any other loss or damage which is directly attributable to the revocation or modification of the planning permission.
A claim for compensation under section 107 may be made by any person “interested in the land”. This is not limited to persons with a freehold, leasehold, or other proprietary interest in the land. In Pennine Raceway Ltd v Kirklees Metropolitan Borough Council (1982) 263 EG 721 the phrase “interested in the land” was held to be wide enough to permit a compensation claim from a businessman who had a contractual licence to use the land. (In Pennine Raceway Ltd v Kirklees Metropolitan Borough Council (No 2) [9] 1 EGLR 30; [1989] 23 EG 73 the Court of Appeal held that the compensation was a “capital sum derived from an asset”, taxable in his hands, and had to be paid to the claimant gross, without any notional deduction of tax.) A mere trespasser does not have any interest in the land: R v Secretary of State for the Environment, ex parte Davis [1989] 3 PLR 73.
The right to claim compensation for any “loss or damage” under section 107 will include a right to claim for any depreciation in the value of the claimant’s interest in the land. The right to claim for “abortive” work will include a right to claim for expenditure incurred in the preparation of plans and so on, even though such expenses would not have been recoverable had the application for planning permission been refused in the first place. Apart from this, however, there cannot be any claim for loss or damage arising out of anything done, or omitted to be done, before planning permission was granted.
The right to compensation following the confirmation of a discontinuance order is contained in section 115 of the 1990 Act. This right extends to:
(a) a depreciation in the value of the claimant’s interest in the land; and
(b) any expenses reasonably incurred in carrying out any works in compliance with the order.
The compensation will be reduced (under section 115) by the value of any timber, apparatus, or other materials removed by the claimant for the purpose of complying with the order.
A claim for compensation under section 115 may be made by any person who has suffered “depreciation of a value of an interest” in the land, or who has been required to carry out works in compliance with the discontinuance order.
Compensation which has been paid under section 107 (in respect of a revocation or modification order) may be recoverable by the local planning authority if planning permission is subsequently granted for new development on the land in question. No such provision applies to compensation which has been paid under section 115 (discontinuance orders).
Since the Town and Country Planning (Minerals) Act 1981, special provisions will relate to revocation orders, modification orders and discontinuance orders relating to land which is used for (or has planning permission for) the winning and working of minerals. Notwithstanding this change in the law, the case of Hobbs (Quarries) Ltd v Somerset County Council (1975) 30 P&CR 286 remains a useful example of how compensation will be assessed by the Lands Tribunal in cases involving loss of profits. (In that case the claimants were able to show that, but for the revocation of their permission to quarry limestone, they would almost certainly have obtained a very profitable contract to supply limestone to the builders of a nearby motorway. They were entitled to include such a head of claim in their submission for compensation.)
Other remedies
If a revocation order, modification order, or discontinuance order renders land “incapable of reasonably beneficial use in its existing state”, the owner or other person with a proprietary interest in the land, may serve a purchase notice on the local planning authority. This notice will require the local planning authority to purchase the claimant’s interest in the land (for the same price as would have been payable if the transaction were to have been a compulsory purchase transaction). The details of this procedure are now to be found in section 137 of the Town and Country Planning Act 1990.
