Monmouthshire County Council v National Assembly for Wales & Ors

On an application under section 73 of the Town and Country Planning Act 1990, the decision-maker must focus on the conditions governing the existing permission. The practical planning consequences and the facts existing at the date of decision may also be considered. Where the permission remains capable of implementation, the question is whether the proposed alteration matters from a planning perspective. A condition directed only to the identity of the user, rather than land use or amenity, may properly be deleted. Alleged breaches being dealt with in separate enforcement proceedings need not be determined in the section 73 appeal.

The claimant local planning authority sought an order under section 288 of the Town and Country Planning Act 1990 quashing an inspector’s decision under section 78 allowing an appeal against refusal to vary a condition attached to a 1985 planning permission.

The permission concerned the parking of two heavy goods vehicles on woodland adjoining a dwelling. The disputed condition restricted the permission to occupiers of the dwelling. After the dwelling was sold, the woodland owner sought to vary the condition. The authority challenged the inspector’s consideration of current planning policies, the original reasons for the condition, alleged breaches of another condition, and the likely planning outcome without the disputed condition.

1. The claim was dismissed. The inspector’s decision to delete the condition was lawful and was not irrational or affected by a material failure to consider relevant matters.
2. Section 73(1) of the Town and Country Planning Act 1990 requires consideration only of the conditions subject to which planning permission should be granted. The scope depends on the nature of the condition. The principles in R v Leicester City Council, ex parte Powergen UK Ltd 81 P&CR 47, adopting reasoning in Pye v Secretary of State for the Environment 1998 3 PLR 72, permit consideration of practical consequences and current facts.
3. Here the original permission remained capable of implementation. The inspector was entitled to consider whether the identity of the vehicle drivers affected visual impact or the character and appearance of the locality. He was entitled to conclude that it did not.
4. Planning permission is concerned with the use of land rather than the identity of the user. The authority’s stated reason for the disputed condition was to define the limit of the permission, not to protect woodland amenity or land-use policy. Deleting the condition therefore had no perceptible adverse planning effect.
5. Allegations of breach of the separate condition limiting the number and location of vehicles were the subject of separate enforcement proceedings and were not relevant to the inspector’s task.
6. Some observations were immaterial, but they were not essential to the reasoning and could not have affected the result. Judgment was entered for the defendants, with the First Defendant’s costs summarily assessed at £4,592.