Powergen UK Plc v Leicester City Council & Anor

On an application under section 73 of the Town and Country Planning Act 1990, a local planning authority may consider the practical effect of granting permission on different conditions. That includes the fact that the original permission can no longer be implemented and that planning policy has changed since its grant.

The authority is not confined to an abstract comparison between the old and proposed wording of a condition. A permission granted under section 73 is a new permission, while the original permission remains intact. The authority may impose further or different conditions where they are needed for planning purposes.

Powergen held an outline planning permission for redevelopment of a former power-station site. The permission required applications for approval of all reserved matters within three years. Powergen applied in time for approval of reserved matters for a food-store segment, but not for the whole site.

It later sought, under section 73 of the Town and Country Planning Act 1990, to vary a condition so that reserved matters could be submitted and approved phase by phase. Leicester City Council refused the application, principally because a food superstore was then contrary to current planning policy. Dyson J rejected Powergen's challenges. The appeal concerned the construction of the outline permission, an alleged legitimate expectation, and the scope of the authority's powers under section 73.

1. Appeal dismissed unanimously. Lord Justice Schiemann gave the judgment, with which Lord Justice Potter and Lord Justice Morritt agreed.

2. The outline permission, read in its statutory context, required approval of reserved matters for the development as a whole. In the absence of separate periods specified under section 92(5), “reserved matters” and “development” bore their ordinary statutory references to the whole development. Powergen's application concerning only the food-store segment therefore did not satisfy the relevant condition.

3. There was no enforceable legitimate expectation. For the reasons given by Dyson J, the officers relied upon lacked actual or ostensible authority to make the asserted representations. The words used did not create the claimed expectation, and there had been no relevant reliance.

4. The court approved and applied the reasoning in Pye v Secretary of State for the Environment [1998] 3 PLR 72. A section 73 application produces a new planning permission, leaving the original permission intact. The authority considers the conditions on which that new permission should be granted. It may impose other new conditions, remove conditions, or grant unconditionally where appropriate.

5. Section 73 did not require the authority to ignore that the earlier permission had expired or become incapable of implementation. The relevant comparison was between the present effect of retaining an historic condition and the present effect of granting a new permission with the proposed condition. Current planning policy and material facts were therefore relevant. The proposed variation would have enabled development contrary to the current policy and would have undermined the statutory purpose of preventing the accumulation of unimplemented permissions. Its refusal was rational and lawful.

• Court of Appeal (Civil Division): Dismissed Powergen's appeal in [2000] EWCA Civ 165.
• High Court: Dyson J rejected Powergen's challenge to Leicester City Council's refusal of its section 73 application.