Retrospective planning consent imposed current obligations

Section 73 of the Town & Country Planning Act 1990 (“TCPA”) enables an application to be made to proceed with a development without complying with conditions attached to a planning permission whether the development has not yet commenced, or is in progress, or has been completed.

If the development has not yet commenced, a new grant of permission will take effect prospectively.

If the development is partially completed the permission may take effect prospectively or, using the power under section 73A, both retrospectively and prospectively.

However, if the development has been completed in breach of a pre-condition, retrospective planning permission may be granted under section 73A subject to conditions imposed under section 70. No part of it can be prospective since (i) there remains no proposed development in respect of which any permission can be given and (ii) since there is no proposed development, any conditions, as varied, could only be imposed as a current obligation.

Court of Appeal case of Lawson Builders Ltd & Ors v Secretary of State for Communities and Local Government & Anor [2015] turned on whether the appellants had, in 2010, successfully appealed against the refusal of an application under section 73 of the Town & Country Planning Act 1990 (“TCPA”) for the variation of planning conditions attached to an earlier permission or whether the appellants the planning inspector’s decision constituted the grant of retrospective planning permission for the dwellings under sections 73A and 75(3) TCPA, so rendering the development lawful, and the conditions attached to the permission enforceable.

No carriageway works were undertaken in compliance with the conditions on the 2010 permission and the council served a Breach of Condition Notice (“BCN”). The first appellant took no action and was convicted of failing to comply with the BCN contrary to section 187A(9) TCPA.

The appellants accepted that the development for which the first appellant was seeking planning permission had already been completed in breach of a 2004 planning permission because the appellants had failed to carry the carriageway works out as a pre-commencement condition.

It followed that any new planning permission granted by the local planning authority (or the planning inspector on appeal) whether or not subject to conditions had to be retrospective in its effect.

New conditions could not be grafted on to the 2004 permission – that was not the way section 73 worked.

Subject to qualifications in subsections (4) and (5) (not applicable here), section 73(2) made it plain that the local planning authority must either grant a new permission with no conditions or grant a new permission with different conditions or refuse the application.

1. The first appellant had not been seeking permission for a “proposed development” it had been seeking permission for a completed development.

2. The first appellant was seeking the variation of pre-conditions to the original development. Any conditions attached to the fresh permission could not be pre-conditions to the construction of a “proposed development” because the development had been completed and the existing breach was irremediable. If the conditions were to be varied in the terms sought they could only be conditions that took effect at the date of the grant of the retrospective planning permission or at some other specified time in the future.

It was implicit that if the 2010 application had been successful it would result in a grant of planning permission retrospectively and the imposition of new conditions for the carriageway works that would take effect on or after the date of grant.

An application merely to change the specification of the carriageway works referred to in the 2004 planning permission could not have assisted the first appellant because the carriageway works were a pre-condition to the development. What was done was done. The first appellant could only achieve what it wanted by a grant of fresh planning permission retrospectively subject to revised conditions imposing new current obligations as to the carriageway works.

The first appellant could not implement the 2004 permission because its failure to comply with the carriageway pre-commencement conditions attached to it was irremediable and it had already ‘implemented’ the 2010 permission by completing the development before permission was granted so that the conditions of that permission had immediate practical application.

The original purpose of the conditions being pre-conditions to the 2004 permission (i.e. to prevent building and occupation before the conditions were fulfilled) could no longer be achieved. The development was already causing harm from additional traffic and “it [was] essential that the scheme be submitted and completed in a short time”. The first appellant could not reasonably have understood that compliance with carriageway conditions had been optional.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.