Vue Entertainment Ltd, R (on the application of) v City of York Council

The claimants seek judicial review to quash the decision of the defendant council to grant a planning permission which resulted from an application to vary conditions pursuant to section 73 of the Town and Country Planning Act 1990. The question at issue is whether, in all the circumstances, the use of section 73 was lawful.

The basic submission made on behalf of the claimants is that the change of condition in the circumstances made a fundamental change to the development which had previously been authorised pursuant to a planning permission granted on 21 May 2015.

The fresh permission resulting from the section 73 application was made on 21 June 2016. The permission related to land, that is known as Huntington Stadium, at Huntington, outside York. What was applied for, so far as the permission was concerned, and what was granted was in the following terms:

“The demolition of existing structures and the erection of an 8,000 seat community stadium, leisure centre, multi-screen cinema, retail units, outdoor football pitches, community facilities and other ancillary uses, together with associated vehicular access, car parking, public realm, and hard and soft landscaping.”

There were some 36 conditions attached to the grant of permission. The material one is Condition 2, and that required that the permission should be implemented on the basis of a number of plans which were identified.

The claimants, as their name suggests, operate a cinema in York and their concern was when the original application was made, and of course remains, that the development will have an adverse impact upon its clientele. They have been joined in the opposition to this amendment by another cinema which operates also in York and which also fears that there will be an adverse impact. It is not only said that the impact will affect the individual appellant but it will mean that fewer people are attracted to York centre, and this will have an adverse effect upon the city centre and that is the basis upon which the complaint is levelled.

What is said is that if one looks at the changes there is a very significant increase in the numbers who can attend the multi-screen cinema and who will be thus attracted to go there and so the effect on the claimants will be that much greater. This, Mr Walton submits, amounts to what he has described as a "fundamental change" to the effect of the planning permission. It is said that the increase in the cinema floor space is in fact an 80 per cent increase, the seats are a 20 per cent increase and this is, he submits, a fundamental change.

Section 73 of the Town and Country Planning Act 1990 has its history in an amendment introduced in 1986. Prior to that it was not possible for there to be any amendment to a permission, even if a relatively small and perhaps uncontroversial amendment, and there was a need for a fresh application for planning permission to be made. That could in a given case put at risk the permission which had already been granted. Accordingly, it was decided that it was sensible to pass the legislation which enabled an amendment to be made by the change to, or removal of, a particular condition.

The section itself reads, so far as material, as follows:

It is to be noted that section 73(2) does not limit in any way the nature of the condition, other than as to time, which can be amended under that section. There is guidance which has been produced in the form of a PPG, and so far as material, that reads:

However, in this case the council in considering its powers did say it was applying the guidance and did therefore use the word "minor". Of course, Mr Walton relies on that in submitting that this could hardly be described properly as a "minor amendment".

Much reliance was placed upon the decision of Sullivan J in R v Coventry City Council ex parte Arrowcroft Group PLC, a decision reached on 21 July 2001, Property and Compensation Reports, page 70. In that case, the permission in question following the application was in the following terms:

The application under section 73 sought to reflect that there was to be a different food operator and that the new operator wanted to provide a store which was larger than the normal food superstore and which sold a higher proportion of non-food goods. The reduced space thereby made available for the variety superstore would instead be devoted to a number of non-food variety stores selling fashion, footwear and household goods. It must be obvious from that, that the amendment to the condition sought in reality did seek to amend the permission itself because instead of one food superstore and one variety superstore with associated small retail etc, there was to be substituted the provision that I have indicated.

The argument in that case which was accepted by Sullivan J was that it was not permissible for a condition to seek to vary the permission which had been granted and therefore it was a misuse of section 73 to seek to achieve that.

The ratio of Sullivan J’s decision seems to me to be contained in paragraph 33 of his judgment. Having referred to the provision in section 73(1) that the planning authority has to consider only the question of the conditions subject to which planning permission should be granted and not the permission itself, he went on:

Thus, Arrowcroft(supra) in my judgment does no more than make the clear point that it is not open to the council to vary conditions if the variation means that the grant (and one has therefore to look at the precise terms of grant) are themselves varied.

In this case, the amendments sought do not vary the permission. It is as I have already cited and there is nothing in the permission itself which limits the size of either the amount of floor space or the number of screens and thus the capacity of the multi-screen cinema. The only limitation on capacity is the stadium itself, which has to be 8,000 seats.

It seems to me obvious that if the application had been to amend the condition to increase the capacity of the stadium that would not have been likely to have fallen foul of the Arrowcroft principle because it would have been a variation to the grant of permission itself but as I say, that is not the case here.

Mr Walton's submission that it is a fundamental change is a reflection of part of the permission only, that is to say, the part that deals with the multi-screen cinema. When one is concerned with fundamental variations, one must look, as it seems to me, to the permission as a whole in order to see whether there is in reality a fundamental change, or whether any specific part of the permission as granted is sought to be varied by the change of condition.

It is to be noted that section 73 itself, as I have said, does not in terms limit the extent to which an amendment of conditions can be made. It does not have, on the face of it, to be within the adjective "minor", whatever that may mean in the context.

It is, I suppose, possible that there might be a case where a change of condition, albeit it did not seek to vary the permission itself on its face, was so different as to be what could properly be described as a fundamental variation of the effect of the permission overall. But it is not necessary for me to go into the possibility of that in the circumstances of this case because I am entirely satisfied that that does not apply in this particular case.

Now it must be obvious that it is necessary, if there is to be an amendment which is likely to affect a would-be objector, particularly where as, here, the claimants were objectors on the basis of the adverse effect on their operation of the proposal that there must be proper notification, consultation and ability to make representations. There was such, and representations were made. Furthermore, this being an EIA development, by its size, there was a need to produce and there was produced a supplementary report to comply with those obligations.

It follows that there is no prejudice so far as the claimants are concerned, because they have been notified and they have been able to make representations. Those representations have been taken into account, as have those by the other cinema operators and thus the position so far as that is concerned is precisely the same as it would have been had there been a need for a fresh application.

It follows that in all the circumstances of this case there really is nothing to be gained from the quashing of this decision, even it were a decision which had any unlawfulness in it.

However, the submission is that the use of section 73 in the circumstances was unlawful and if that was established it would not be possible to dismiss this on the basis that it achieved nothing for the applicants because if unlawful it cannot be permitted to stand. But for the reasons that I have given, I am entirely satisfied that it was not unlawful, that there was clear power to grant the application and there was full and proper consideration given by the council in all the circumstances to the objection made against it and also the proper procedures were adopted in relation to a fresh statement to comply with the EIA position.

Accordingly, in my judgment, this claim must be refused.

MR STRAKER: I am much obliged. In those circumstances, could I ask for three things, none of which should be controversial. First, could your Lordship as a matter of form dismiss the application?

MR JUSTICE COLLINS: Yes.

MR STRAKER: Second, could your Lordship please award costs to the council, bearing in mind this is an Aarhus claim.

MR JUSTICE COLLINS: Yes.

MR STRAKER: We are limited, therefore, to £10,000.

MR JUSTICE COLLINS: Yes.

MR STRAKER: Our costs, as recorded on the schedule, significantly exceed that and so I hope there is no controversy about receiving the lesser sum.

Third, which your Lordship already has in his hand, please may I have my book back?

MR JUSTICE COLLINS: Yes. Could you return that to Mr Straker, thank you.

MR STRAKER: Thank you very much, my Lord.

MR JUSTICE COLLINS: So far as costs are concerned.

MR WALTON: No opposition to any of those points, even the return of the book.

MR JUSTICE COLLINS: Any other order?

MR WALTON: [Shakes his head].

MR JUSTICE COLLINS: I will make it clear that I would not grant leave to appeal so I think it formally it would be sensible for me to refuse leave to appeal. All right, thank you both.