Valente v First Secretary of State

On an application under section 73 of the Town and Country Planning Act 1990, the decision-maker must assess the relevant planning circumstances, including material changes since the original permission. A failure to consider a material planning consideration vitiates the decision. The potential restoration of a listed building may constitute a very special circumstance supporting inappropriate development in the Green Belt, even where restoration is not legally secured by a section 106 agreement. The existence of a non-binding development package does not create a substantive legitimate expectation, but may remain a material consideration. A decision may be quashed where the omitted consideration could realistically have affected the planning balance.

The claimant challenged, under section 288 of the Town and Country Planning Act 1990, an inspector’s dismissal of an appeal concerning the refusal or non-determination of a section 73 application. The application sought an extension of time for submitting reserved matters for an hotel forming part of an outline permission for golf and leisure development in the Green Belt.

The inspector accepted that the proposed hotel would not adversely affect nearby listed buildings, but concluded that the section 106 works had substantially been completed. He therefore found no continuing very special circumstances to justify inappropriate Green Belt development. The central issue was whether the inspector had failed to consider the intended restoration of a listed barn as a material consideration.

1. The application was allowed and the inspector’s decision was quashed. The inspector had failed to take into account the proposed restoration of the Barn.
2. Under section 73 of the Town and Country Planning Act 1990, an application to vary conditions produces a new planning permission, but the relevant planning assessment must still address the circumstances bearing on the variation. The inspector correctly approached the question by considering whether there had been a material change in planning circumstances.
3. The inspector treated the relevant enabling works as confined to the works secured by the section 106 agreement. Those works did not include restoration of the Barn. The intended restoration was a separate element of the development and was capable of constituting a very special circumstance relevant to the Green Belt balance.
4. The omission was material. The restoration involved substantial prospective expenditure and might have affected the conclusion that there was no continuing need for enabling development. It was therefore wrong to exercise discretion not to quash the decision.
5. The wider alleged agreement or package did not give rise to a substantive legitimate expectation. The only legally binding agreement was the section 106 agreement. Nevertheless, the parties’ aspiration that hotel development would enable restoration of the Barn remained a material planning consideration.
6. The remaining grounds failed. The inspector was entitled to rely on the English Heritage Policy Statement, including its criterion that enabling development must be the minimum necessary. He had also adequately addressed the listed buildings and their settings under section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990.
7. The first defendant was ordered to pay the claimant’s costs. There was no order for costs against the second defendant. Permission to appeal was refused, with 14 days from receipt of the transcript allowed for any renewed application.

The claimant challenged the first defendant’s inspector’s decision of 20 November 2002 under section 288 of the Town and Country Planning Act 1990. The Administrative Court allowed the application and quashed the decision.