In Pye v Secretary of State for the Environment [1998] 3 PLR 72, an application had been made to the local planning authority (“LPA”) under section 73 of the Town and Country Planning Act 1990 to develop the land in question without compliance with conditions previously attached by an extant planning permission. The High Court held that whether the LPA granted planning permission pursuant to that application, or whether it refused to do so, the original planning permission was left intact and unamended. As a consequence, where the LPA did grant planning permission the applicant then enjoyed a choice. He could choose to implement the original planning permission, or he could choose to implement the new planning permission.
The High Court in R (on the application of Robert Hitchins Ltd) v Worcestershire County Council [2014] EWHC 3809 (Admin) has now held that this principle is of general application in all cases where there are multiple extant planning permissions for the same site, and that it is not restricted to section 73 applications. (The judge did, however, recognise that there might be exceptions, such as where in practice steps taken in pursuance of one planning application may make it impossible to implement another one.)
In Hitchins, the LPA had granted planning permission for around 200 dwellings and associated works on the application site, on the claimant entering into a planning obligation binding it to make set contributions towards a local transport strategy. The claimant subsequently applied again to the LPA for planning permission, in identical terms save for the offer of any such contributions. The LPA failed to determine the second application, and the claimant appealed successfully to the secretary of state. The inspector granted planning permission, but concluded that a similar planning obligation would not meet the requirements of regulation 122(2) of the Community Infrastructure Regulations 2010.
The court held that the claimant, and any subsequent owner of the application site, was entitled to choose under which planning permission it wished to proceed, and that on electing to proceed under the second planning permission it could not lawfully be required to pay any further contributions under the planning obligation. It went on further to hold that, on the facts, the claimant’s successor in title to the application site had elected to proceed under the second planning permission.
John Martin is a planning law consultant
