Kebbell Development Ltd., R (on the application of) v First Secretary of State

An application under section 73 of the Town and Country Planning Act 1990 is an application for fresh planning permission. It must be determined on the facts and planning policies existing when the application is made. However, changes in policy do not permit the decision-maker to disregard other material considerations. Where an earlier permission was connected with a section 106 bargain containing continuing obligations, those obligations must be considered carefully before an extension of time is refused. A failure to address a continuing obligation and the associated legitimate expectation may render the decision unlawful.

The claimant sought under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s dismissal of its appeal against refusal of a section 73 application. The application concerned outline permission for seven bungalows, subject to a time limit for approval of reserved matters. That time expired before the claimant acquired the land.

The original permission followed a section 106 agreement under which land was transferred to the local authority for public recreational purposes and drainage works remained to be carried out. The central issue was whether the inspector had lawfully balanced changed planning policy against the continuing obligations and expectations arising from that agreement.

1. The claim succeeded and the inspector’s decision was quashed. The inspector was entitled to take account of changes in planning policy when determining the section 73 application.
2. A section 73 application is an application for fresh permission and must be determined by reference to the facts and circumstances existing at the time of the application. This did not mean that other material considerations could be ignored.
3. The section 106 agreement contained continuing obligations on the owners, including drainage works. The corresponding position of the local planning authority could not be treated as having ended summarily merely because the original outline permission had become incapable of implementation through expiry of its time condition.
4. The inspector referred to the absence of a continuing obligation on the Council to view the proposed development in perpetuity, but failed to consider the continuing obligation relating to drainage. He therefore failed to give full consideration to a material matter and did not properly balance changed policy against the obligations arising from the agreement.
5. The claimant had a legitimate expectation of a substantive benefit arising from the bargain. It was unfair to frustrate that expectation without full consideration before deciding the section 73 application. The decision was accordingly fatally flawed and was quashed.
6. Costs were awarded to the claimant in the sum of £8,997. Permission to appeal was granted.

Not an appeal. The Administrative Court determined a claim under section 288 of the Town and Country Planning Act 1990.