Kebbell Development Ltd v First Secretary of State & Anor

In a section 73 planning application, the decision-maker must assess the facts and planning policies current at the date of decision. An earlier section 106 agreement may be a material consideration, but it does not ordinarily create a continuing expectation that permission will be renewed or that a variation will be granted. A legitimate expectation extends only to a decision made according to the Act and established legal principles, including consideration of all material factors. On review, the court should not infer that an Inspector ignored a factor plainly identified in the decision letter. Nor need an obligation to remedy flooding caused by development be weighed against objections where the development cannot lawfully proceed.

The original owners obtained outline planning permission in 1998 for seven bungalows and an access road. A section 106 agreement required transfer of adjoining land for community use and included a conditional obligation concerning flooding. The respondent developer acquired the site after the deadline for approval of reserved matters had passed and applied under section 73 for an extension of time.

The local authority refused the application because changed regional, local and national policies favoured previously developed land over the greenfield site. The Inspector upheld that decision. Sir Richard Tucker quashed it on a section 288 challenge under the Town and Country Planning Act 1990, holding that the Inspector had not fully considered the continuing obligation and a legitimate expectation. The issue on appeal was whether either ground disclosed a reviewable error.

Disposition

The appeal was allowed unanimously. The order quashing the Inspector’s decision was set aside, the statutory application was dismissed, and costs here and below were assessed at the agreed sum of £9,118.

1. Lord Justice Keene held that a section 73 application must be determined by reference to the factual circumstances and planning policies existing when the application is decided. This principle was consistent with Pye v Secretary of State for the Environment [1998] 3 PLR 72 and R v Leicester City Council ex parte PowerGen UK Limited (2001) 81 P & CR 47. The changed planning policies were therefore relevant, and the Inspector’s conclusions on them were not challenged.
2. The section 106 agreement did not create a legitimate expectation that a later application would be granted or that the authority would view the development favourably in perpetuity. The original expectation was that the residential application would be granted, and that expectation had been fulfilled. There could only be an expectation that a later section 73 application would be determined according to the Town and Country Planning Act 1990 and established legal principles, with all material considerations taken into account. The court applied the principle in Re Findlay [1985] AC 318 at 338D-E that an expectation must be legitimate, not merely held in fact.
3. The Inspector expressly knew of the agreement, the transfer of the adjoining land and the drainage obligation. Applying Seddon Properties Limited v Secretary of State for the Environment [1981] 42 P & CR 26, the court would not readily infer an omission from a planning decision letter where the factor was clearly identified. The weight given to a material consideration remained for the original decision-maker.
4. The drainage obligation applied only to flooding caused by works associated with development of the appeal site. If the section 73 application was refused, that development could not lawfully proceed, so the obligation would not in reality be engaged. It therefore did not need to be weighed against the planning objections. The court applied Whitley & Sons v Secretary of State for Wales (1992) 64 P & CR 296.

Lord Justice Scott Baker agreed. Lord Justice Simon Brown agreed fully with Lord Justice Keene’s reasons.

1. Court of Appeal (Civil Division) — Appeal allowed. The High Court’s order was set aside, the statutory application was dismissed, and costs were ordered here and below.
2. High Court, Administrative Court — Sir Richard Tucker quashed the Inspector’s decision under section 288 of the Town and Country Planning Act 1990, holding that the Inspector had failed to give full consideration to a continuing contractual obligation and a legitimate expectation.