ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT (sitting at Leeds)
Mr Justice Supperstone (CO/12544/2012)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DAVIS
LORD JUSTICE LEWISON
| LAWSON BUILDERS LIMITED
|- and -
|SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
WAKEFIELD METROPOLITAN DISTRICT COUNCIL
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Mr Gwion Lewis (instructed by The Treasury Solicitor) for the First Respondent
Mr John Hunter (instructed by Wakefield MDC Legal Department) for the Second Respondent
Hearing dates: 12 February 2015
Crown Copyright ©
Lord Justice Pitchford:
The planning background
"10: The development shall not be brought into use until all footway/verge crossings have been completed.
11: The development shall not be brought into use until all areas indicated to be used for pedestrians and vehicles in the approved plan have been laid out with a hardened, sealed and drained surface.
12. Development shall not commence until a scheme (including construction details) for the following on site works have been submitted to and approved in writing by the Local Planning Authority. The construction (to an adoptable standard) of the carriageway widening to 5.0 m, the provision of a 2 m wide footway along the site frontage and the provision of turning as shown on the approved plans. The development shall not be brought into use until the above works have been carried out in accordance with the approved details and, unless otherwise approved in writing by the Local Planning Authority, the works have been vested [in] the Highways Authority.
13. The development shall not be occupied until 2.0 m x 2.0 m vehicle/pedestrian intervisibility splays have been provided on both sides of the access/drive such that there is no obstruction to visibility greater than 600 m above the level of the adjacent footway. Such splays shall thereafter be retained."
Planning appeal decision 7 September 2010
" I allow the appeal in part and grant planning permission for two dwellings at 15 and 17 Bracken Hill in accordance with the application...dated 9 July 2009 without compliance with conditions 10, 11, 12, and 13 previously imposed on planning permission Ref 04/99/63308/A dated 8 October 2004, but subject to the other conditions imposed therein, so far as the same are still subsisting and capable of taking effect and subject to the following new conditions:
(12) Within 1 month of this decision, a scheme...for the carriageway widening, the footway/verge crossings, the 1 metre wide footway and the turning facility...shall be submitted to and approved in writing by the planning authority. The works shall be carried out in accordance with the approved details and shall be completed within three months of the date of this decision...
(13) Within 3 months of this decision...vehicle/pedestrian intervisibility displays shall be provided on both sides of the access/drive..."
"12. Overall, I consider that even if the other turning heads were to be completed, this proposal should include a further turning facility given the unsatisfactory nature of this road. I am satisfied that subject to the inclusion of a condition similar to number 13, regarding pedestrian and vehicle intervisibility, a one-metre footpath would provide sufficient refuge for pedestrians crossing or using the road. I consider that without these facilities the proposal would be harmful to road safety and would therefore be contrary to Policy D14 of the Wakefield Metropolitan District Council Local Development Framework as this seeks the safe and free flow of traffic."
Lawful development certificates 10 May 2012
"1. The Council is satisfied that the use of the building as a dwelling (Class C3) without compliance with conditions on permission Ref. 04/99/63308/A is lawful by virtue of having been authorised as a result of permission Ref. 09/1307/FUL granted on appeal on 7th September 2010 and the operation of section 75 of the 1990 Act.
2. However, for the avoidance of any doubt, the Council is not satisfied that any non-compliance with conditions on permission Ref. 09/1307/FUL granted on appeal on 7th September 2010 is or would be lawful. Such non-compliance remains capable of being enforced against.
Planning appeal decision 15 October 2012
"11...It would make nonsense of the legislation if the appellant could shelter under the protection of a planning permission without being bound by any of the conditions to which it is subject. I conclude that the 2010 permission was implemented and that the Council's decision to modify the grant of the LDC to include reference to that wording was well-founded."
The statutory provisions
"73. Determination of applications to develop land without compliance with conditions previously attached
(1) This section applies, subject to sub-section (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) Special provision may be made with respect to such applications—
(a) by regulations under section 62 as regards the form and content of the application, and
(b) by a development order as regards the procedure to be followed in connection with the application.
(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 being begun.
(5) Planning permission must not be granted under this section to the extent that it has effect to change a condition subject to which a previous planning permission was granted by extending the time within which—
(a) a development must be started;
(b) an application for approval of reserved matters (within the meaning of section 92) must be made.
73A. Planning permission for development already carried out
(1) On an application made to a local planning authority, the planning permission which may be granted includes planning permission for development carried out before the date of the application.
(2) Sub-section (1) applies to development carried out—
(a) without planning permission;
(b) in accordance with planning permission granted for a limited period; or
(c) without complying with some condition subject to which planning permission was granted.
(3) Planning permission for such development may be granted so as to have effect from—
(a) the date on which the development was carried out; or
(b) if it was carried out in accordance with planning permission granted for a limited period, the end of that period."
Section 73A was an early amendment to TCPA made by the Planning and Compensation Act 1991 with effect from 2 January 1992. Section 73A is in similar but not identical terms to the former section 63 TCPA that was at the same time repealed. Parliament plainly considered that the replaced provisions should live next to section 73 TCPA.
The appellants' grounds
(1) Mr Rogers concluded erroneously that either the 2004 or the 2010 permission had been implemented.
(2) It was not open to Mr Rogers to "re-classify" the 2010 permission as retrospective planning permission granted under section 73A TCPA. No such permission had been sought by the appellants or granted by Mr Eggleton. The application made was for the removal or variation of conditions attached to the 2004 permission. Had the first appellant known in 2010 that the inspector was going to grant retrospective planning permission it could have withdrawn its appeal. Because no-one had suggested that the 2010 decision amounted to more than a variation of conditions the appellants had been put in a position that they never intended.
(3) Mr Rogers was wrong to find that the 2010 permission provided consent for the use for which the dwellings were designed so as to engage section 75(3) TCPA.
Lord Justice Davis
Lord Justice Lewison