Finney v Ministers & Ors

Legislative Framework

Section 73 of the 1990 Act provides as follows:-

“(1)

This section applies, subject to subsection (4), to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted.

(2)

On such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted, and—

(a)

if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly, and

(b)

if they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application.

(3)

[Repealed]

(4)

This section does not apply if the previous planning permission was granted subject to a condition as to the time within which the development to which it related was to be begun and that time has expired without the development having been begun.

(5)

…”

In his skeleton argument and in his oral submissions Mr Fullbrook drew my attention to other provisions of the 1990 Act. In particular, he referred to section 96A of the Act which provides:-

“(1)

A local planning authority … may make a change to any planning permission or any permission in principle (granted following an application to the authority) relating to land in their area if they are satisfied that the change is not material.

(2)

In deciding whether a change is material, a local planning authority must have regard to the effect of the change, together with any previous changes made under this section, on the planning permission or permission in principle as originally granted.

(3)

The power conferred by subsection (1) includes power to make a change to a planning permission —

(a)

to impose new conditions;

(b)

to remove or alter existing conditions.

(4)

The power conferred by subsection (1) may be exercised only on an application made by or on behalf of a person with an interest in the land to which the planning permission or permission in principle relates.”

Decisions relating to the scope of section 73 of the 1990 Act

The scope of section 73 has been considered in a number of first instance decisions in the High Court. Most recently, it was considered by Singh J (as he then was) in R (Wet Finishing Works Ltd) v Taunton Deane Borough Council [2018] PTSR 26.

So far as relevant, the facts in Wet Finishing Works were these. In 2005 the Claimant acquired a listed mill building with a view to restoring it. It intended that the restoration was to be financed in part through a residential development of 84 dwellings on an adjacent site. The local planning authority granted conditional planning permission to the Claimant and the intended developer for such a development in 2012. (Although the precise terms of the permission are not recorded in the judgment the parties before me have framed their submissions on the basis that the terms of the permission granted authorised the construction of 84 dwelling houses). In 2016 the authority granted an application made by the developer alone under section 73 of the 1990 Act. The precise terms of that application are not recited in the judgment of Singh J but, necessarily, the application must have been for permission to develop the land adjacent to the mill without complying with a condition or conditions attached to the permission granted in 2012. On any view, however, the effect of the application was to seek an increase in the permitted number of dwellings from 84 to 90. Following the grant of permission under section 73 of the Act, the Claimant sought judicial review of the decision of the local planning authority on the grounds, inter alia, that the local planning authority had no power under that section to grant permission for the increase in the permitted number of dwellings. It was argued on behalf of the claimant that because the permission granted in 2012 had authorised the construction of 84 dwellings whereas the decision made by the local authority in 2016 under section 73 authorised the construction of 90 dwellings there was a “fundamental inconsistency between the operative part of the decision notice and the conditions in accordance with which the development [was to] be constructed” (see paragraph 38 of the judgment). Further, counsel for the claimant submitted that although a condition might lawfully be imposed to restrict what was permitted by a planning permission, e.g. to reduce the number of houses applied for in an application, it was not possible under section 73 to increase the number of houses originally permitted (see paragraph 42).

Singh J. rejected these arguments in a reserved judgment. He considered that the ambit of section 73 of the 1990 Act and the relevant principles relating to its application had been considered and determined by Sullivan J (as he then was) in R v Coventry City Council, ex p. Arrowcroft Group plc [2001] PLCR 7. He paid particular attention to the statement of principle at paragraph 33 of the judgment in Arrowcroft that under section 73 a local planning authority:-

“is able to impose different conditions upon a new planning permission, but only if they are conditions which the council could lawfully have imposed upon the original planning permission in the sense that they do not amount to a fundamental alteration of the proposal put forward in the original application”.

Following that approach, Singh J held that the local planning authority would have been entitled to attach a condition to the permission granted in 2012 which limited the number of houses to 90 and that, consequently, at the stage of the subsequent application under section 73, it was lawful to vary the condition which had actually been imposed provided that the variation did not bring about a fundamental alteration of the proposal for which permission had been granted. His view was that on the facts before the local planning authority it had been entitled to conclude that the alteration to the proposal brought about by an increase in the number of houses from 84 to 90 was not fundamental. Its decision to that effect was neither irrational nor unreasonable and, therefore, lawful.

Given the reliance which Singh J placed upon the decision and reasoning in Arrowcroft, it is necessary to consider that case in some detail. The salient facts were these. In 1998 Coventry City Football Club (Holdings) Ltd applied for planning permission for development upon a site to the north of Coventry which included the following components:-

“40,000 seat multi-purpose arena, 1 food superstore and 1 variety superstore with associated small retail, service and community units” [These units were referred to as unit shops]

In December 1999 an application was made under section 73 of the Act to vary conditions. So far as material the variations sought permitted the erection of “a food superstore and non-food variety store(s) (comprising a range of non-food A1 retail units)”. Further, the gross external floor space of the food superstore was increased to 13,000 square metres whereas the non - food variety stores were limited to a total of 5,575, square metres. A provision was also included which limited the non-food variety stores to no more than 6.

The important parts of the judgment of Sullivan J begin at paragraph 29. He there cited with approval a passage from paragraph 72.06 (as it then was) of the Planning Encyclopaedia describing it as “a useful starting point”. The passage in question was:-

“A condition may have the effect of modifying the development proposed by the application provided that it does not constitute a fundamental alteration in the proposal”.

At paragraph 32 Sullivan J wrote:-

“Thus, in response to the application in 1998 it was entirely proper for the local planning authority to impose conditions, for example, limiting the size of the variety store, providing that it should not open until the unit shops had been substantially completed and preventing its later subdivision. It would not, in my judgment, have been lawful for the local planning authority to have impose in response to an application for planning permission for, inter alia, “one variety store” a condition which said:

“the buildings to be erected shall comprise up to six non-food variety stores comprising a range of non-food A1 retail units””

At paragraph 33 Sullivan J continued:-

“Faced with the imposition of such a condition there can be little doubt that Marks & Spencer would have replied to the local planning authority “While you have purported to grant planning permission for one variety store the condition negates the effect of that permission. You may not lawfully grant planning permission with one hand and effectively refuse planning permission for that development with the other by imposing such an inconsistent condition.” If that was the extent of the council's powers in response to the application in 1998, as in my judgment it was, I do not see how the council can claim to be entitled to impose such a fundamentally inconsistent condition under section 73. It is true that the outcome of a successful application under section 73 is a fresh planning permission, but in deciding whether or not to grant that fresh planning permission the local planning authority,

“… shall consider only the question of the conditions subject to which planning permission should be granted….”(See s.73(1) and Powergen above)

Thus the council is able to impose different conditions upon a new planning permission, but only if they are conditions which the council could lawfully have imposed upon the original planning permission in the sense that they do not amount to a fundamental alteration of the proposal put forward in the original application. I bear in mind that the variety superstore was but one element of a very large mixed use scheme, nevertheless it is plain on the evidence that it was an important element in the mix and this is reflected in the retail implications of its removal.

At paragraph 35 Sullivan J concluded:

“Whatever the planning merits of this new proposal, which can, of course, be incorporated into a new “full” application, I am satisfied that the council had no power under section 73 to vary the conditions in the manner set out above. The variation has the effect that the “operative” part of the new planning permission gives permission for one variety superstore on the one hand, but the new planning permission by the revised conditions takes away that consent with the other.”

It is also worth noting that in his judgment Sullivan J made reference to his earlier decision in Pye v The Secretary of State for the Environment & Anor [1999] PLCR 28. In that case the learned judge discussed the background to the enactment of section 73 of the Act and, further, laid down some general principles as to its interpretation and applicability. In R v Leicester City Council ex p. Powergen UK Ltd [2000] 81 P&CR 5 the Court of Appeal cited, with approval, what had been said by Sullivan J in Pye (see paragraphs 26 and 27 of the judgment in Powergen). In Wet Finishing Works Singh J set out some of the passages from the judgment of Sullivan J in Pye which had been approved in the Court of Appeal (see paragraph 37 of the judgment of Singh J).

No useful purpose would be served by citing the passages from the judgment of Sullivan J in Pye which were approved in the Court of Appeal. I mention Pye and its approval in the Court of Appeal only because it is clear that Singh J in Wet Finishing Works, considered himself to be applying a consistent line of reasoning set out by Sullivan J in Pye and Arrowcroft and approved, at least in part, by the Court of Appeal.

In my judgment, the ratio of the decision in Arrowcroft is to be found in paragraph 33 of the judgment – see paragraph 24 above. Singh J clearly thought that was the case – see paragraph 45 of his judgment and paragraph 18 above.

It is against this background that I turn to the decision of Collins J in R (Vue Entertainment Ltd) v City of York Council [2017] EWHC 588 (Admin). In that case the defendant granted planning permission on 21 May 2015 for:-

“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.”

Collins J dismissed the challenge to that decision in an ex tempore judgment. In doing so he purported to follow the decision of Sullivan J in Arrowcroft. Since, however, Mr Fullbrook relies upon this decision to a significant degree, it is as well to set out what Collins J had to say about Arrowcroft.

“12.

The argument in [Arrowcroft] 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.

13.

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:

“33.

Thus the council is able to impose different conditions upon a new planning permission, but only if they are conditions which the council could lawfully have imposed upon the original planning permission in the sense that they do not amount to a fundamental alteration of the proposal put forward in the original application.

I bear in mind that the variety superstore was but one element of a very large mixed use scheme. Nevertheless, it is plain on the evidence that it was an important element in the mix and this is reflected in the retail implications of its removal.”

Thus the variation had the effect that the operative part of the new planning permission gave their permission for one variety superstore but the new planning permission by the revised conditions would take away that consent.

14.

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.

15.

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 is to be 8,000 seats.

16.

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.

17.

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.

18.

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.

19.

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.”

The judgment of Collins J in Vue Entertainment was given on 18 January 2017. It was not cited to Singh J at the hearing before him which took place in June 2017.

The actual decision in Vue Entertainment is not controversial. No one before me suggested that it was wrongly decided. Further it is clear that Collins J considered that he should follow Arrowcroft and that the ratio of that decision was to be found in paragraph 33 of the judgment - see paragraph 13 of the judgment of Collins J re-produced at paragraph 29 above. However, before me, there was a considerable debate about the scope of the reasoning of Collins J, particularly the passages at paragraphs 14 and 16, and whether those passages were reconcilable with the reasoning of Sullivan J in Pye and Arrowcroft and that of Singh J in Wet Finishing Works.

The rival contentions

Mr Fullbrook submits that three principles can be discerned from the decisions in Pye, Arrowcroft and Vue Entertainment. They are formulated in paragraph 38 of his skeleton argument. With minor modifications of my own they can be expressed as follows. First, a local planning authority (or inspector upon appeal) is not permitted to vary the terms of the operative part of a planning permission when exercising the power to grant permission pursuant to section 73 of the Act. Second, a planning authority (or inspector upon appeal) cannot, pursuant to section 73, impose a condition which is directly contrary to the terms of the operative part of a planning permission. Third, if, pursuant to section 73, the proposed variation to a condition does not directly contradict the operative part of a planning permission, the local planning authority must nonetheless consider whether the proposed variation would constitute a fundamental alteration to the proposal for which permission had previously been granted and, if so, reject the application under section 73.

Mr Fullbrook submits that the inspector has contravened each of these principles. First, given the terms in which she has allowed the appeal (see paragraph 12 above) she has varied the terms of the operative part of the planning permission which was granted to the Second Interested Party in March 2016. In her formulation of the planning permission granted under section 73 she has omitted any reference to the tip height of the turbines. Second, the “varied” condition 2 would have been be directly contrary to the terms of the operative part of the original planning permission – hence the need to vary the terms of that permission. Third, the inspector failed to consider whether the condition as varied had the effect of altering, fundamentally, the proposal which had been approved by the planning permission of March 2016.

Mr Turney for the Defendant and Mr Hardy for the Second Interested Party do not accept that the principles formulated by Mr Fullbrook accurately state the law. They both submit that the law is accurately described in paragraph 33 of the judgment of Sullivan J in Arrowcroft so that the issues to be considered upon an application under section 73 of the Act are (a) whether the condition proposed in the application could lawfully have been imposed upon the original planning permission and (b) whether the imposition of the proposed condition would bring about a fundamental alteration of the original proposal for which permission was granted. They both submit that the First Interested Party could lawfully have dealt with the original planning application by granting approval in the terms adopted by the inspector and subject to a condition as formulated by her. Further, they argue that such a condition imposed upon a permission granted under section 73 would not constitute a fundamental alteration in the proposed development. They acknowledge that the inspector did not say, in terms, that she had considered whether the condition proposed under section 73 would constitute a fundamental alteration to the original development proposal but they submit that if her decision is read as a whole it is clear that she must have addressed her mind to that issue and concluded that the imposition of the proposed condition would not bring about a fundamental alteration in the original development.

Discussion

Like Collins J and Singh J, I accept that the ratio of the decision of Sullivan J in Arrowcroft is to be found in paragraph 33 of his judgment. I am satisfied, too, that Singh J followed and applied that ratio in his decision in Wet Finishing Works.

Collins J also applied that ratio in his decision in Vue Entertainment. Additionally, however, he expressed the view that Arrowcroft was authority for the proposition that it was not open to a local planning authority to vary conditions pursuant to an application under section 73 of the Act “if the variation means that the grant (and one has therefore to look at the precise terms of the grant) are themselves varied”.

I do not doubt that Collins J derived this proposition from paragraph 33 in Arrowcroft but, having reflected upon that paragraph, I am not convinced that it is authority for the proposition formulated by Collins J. Further, and importantly, I cannot accept that Collins J’s proposition is part of the ratio of his decision.

Conversely, Singh J in Wet Finishing Works could not have read the salient parts of Arrowcroft as prohibiting a variation of a condition pursuant to section 73 in all circumstances if that variation necessarily meant that the terms of the permission granted under section 73 had to change to become consistent with the terms of the condition as varied. It seems to me that the only proper interpretation of the judgment in Wet Finishing Works, is that a variation pursuant to section 73 can be lawful notwithstanding that it may necessitate a variation to the terms of the planning permission which preceded the section 73 application. No other interpretation of the reasoning and decision of Singh J is credible. Crucially, too, this must be part of the ratio of his decision.

In accordance with the doctrine of precedent the decision of Singh J is of persuasive authority. In reality, I would depart from it only if I concluded that the reasoning process which underpinned it was wrong. I am not of that state of mind. It seems to me that the approach of Singh J is wholly consistent with the ratio and reasoning of Sullivan J in Arrowcroft and, further, allows the words of section 73 to be applied with an appropriate degree of flexibility. The argument presented to me by Mr Fullbrook which, in essence, is the same as the argument presented by counsel for the claimant to Singh J in Wet Finishing Works would, if accepted, lead to an over-technical and inflexible approach to the application of section 73 of the 1990 Act.

Further, I should record for completeness that the other statutory provisions relied upon by Mr Fullbrook (see paragraph 15 above) do not deflect me from that view.

I turn to consider whether the condition approved by the Inspector would create a fundamental alteration to the original planning proposal.

Mr Fullbrook complains that the Inspector did not address this issue at all. Mr Turney and Mr Hardy acknowledge that the Inspector made no express reference to whether there was a fundamental alteration in the original proposal brought about by the proposed variation to the condition. Nonetheless, they submit that, read as a whole, the decision letter constitutes a meticulous comparison between the development as envisaged by the original permission and the development envisaged by the variation to the condition. It is proper to infer from that meticulous evaluation, they submit, that the Inspector has concluded that the variation would not constitute a fundamental alteration to the original development proposal.

There can be no doubt that the decision letter does, indeed, constitute a meticulous planning appraisal of the original proposal and the proposal as contemplated by the application under section 73 of the Act. Importantly, in my judgment, the Inspector sets out in terms the major points of difference between the original proposal and application under consideration as identified by the First Interested Party (paragraph 8 above) in paragraphs 12 and 13 of her decision letter. Running through her decision is her planning judgment that the application under section 73 would cause no additional planning harm when compared with the original proposal notwithstanding the increase in size of the structures. Although I am not entirely convinced that the Inspector had in mind that it was necessary for her to consider in terms whether the variation sought would create a fundamental alteration to the original proposal I am prepared to conclude, on balance, that she was aware of that obligation and considered it. In my judgment, the reason why she does not address the issue in her decision letter head on is because it was never the case for the First Interested Party that the application did constitute such a fundamental alteration. I appreciate that this issue was raised in the written evidence of VAST and it may have been raised in passing by the Claimant but I have considerable doubts about whether this played a prominent part in any oral submissions to the Inspector. The Inspector devoted a significant part of her decision letter to the representations of Interested Parties and it seems to me to be a reasonable inference that she faithfully recorded the substance of their most important points (see paragraphs 40 to 47).

I have reached the conclusion that the Inspector did consider whether the application constituted a fundamental alteration of the original proposal and that it is proper to draw the inference from her decision letter read as a whole that she considered that it did not.

I appreciate, however, that it is possible to take a different view. It is at least possible to conclude that while the Inspector was astute to assess the potential adverse impact (in planning terms) of the application under section 73 as compared with the original proposal that does not necessarily mean that she was focussed upon whether the variation of the condition would create a fundamental alteration to the original proposal. As I have said it seems very likely that the whole focus of the hearing before the Inspector was upon the issues which she identified as being crucial in her decision letter and that being the case it is, I acknowledge, a possible reading of the decision letter that the Inspector failed to consider whether the application before her constituted a fundamental alteration to the original proposal.

That does not mean, however, that I would have been prepared to grant the quashing order which is sought. By virtue of section 31(2A) Senior Courts Act 1981 I am obliged to refuse relief if it appears to me to be highly likely that the outcome for the application would not have been substantially different if the conduct complained of had not occurred.

Assuming, therefore, the Inspector did not consider whether the grant under section 73 of the Act would constitute a fundamental alteration to the original proposal I must ask myself what would have been her decision had she done so. I reach my conclusion without much hesitation. I have no doubt that had the Inspector considered whether the variation to the condition would have constituted a fundamental alteration to the original proposal she would have concluded that it did not. The whole tenor of her decision letter leads inexorably, in my judgment, to that conclusion as a careful reading of it makes abundantly clear. In my judgment it is highly likely that had the Inspector addressed this discrete issue she would still have allowed the appeal.

Accordingly this application must be dismissed.