Morland, R (on the application of) v Secretary of State for Communities & Local Government & Anor

An application under Town and Country Planning Act 1990, section 73A, is a conventional planning application for retrospective permission on different terms. The decision-maker must consider the planning circumstances existing when the application is decided. The past expiry of enforcement time limits, or an argument that an existing condition is unenforceable because the development departed from the original permission, is not ordinarily relevant to whether the condition should be imposed on the retrospective permission. Planning guidance concerning enforceability addresses whether a proposed condition is capable of enforcement during the relevant enforcement period. It does not require removal of an otherwise justified condition because earlier planning control could no longer be enforced.

The claimant applied under section 73A of the Town and Country Planning Act 1990 after the local planning authority refused permission to use a holiday bungalow without the holiday-occupancy condition attached to a 1986 permission. An inspector dismissed his section 78 appeal. The claimant sought to quash that decision under section 288, arguing that the condition was unenforceable under the principle in Handoll and Suddick v Warner Goodman and Streat (a firm) and Others (1995) 70 P&CR 627, and that the inspector had to consider that issue. The central question was whether that alleged unenforceability was relevant to the section 73A planning decision.

1. Application dismissed. The inspector had correctly treated the claimant’s application as one for retrospective planning permission for the development authorised by the 1986 permission, without condition 3, rather than as an application simply to remove a condition. R (Wilkinson) v Rossendale Borough Council [2002] EWHC 1204 (Admin) supported that characterisation.
2. A section 73A application is in all respects a conventional planning application, although the development has already taken place. The decision-maker must consider all the planning circumstances existing at the date of decision, as stated in Sevenoaks DC v Secretary of State for the Environment (1994) P & CR 87 and followed in Bannister v Secretary of State for the Environment [1994] 2 PLR 90.
3. The principle in Handoll and Suddick v Warner Goodman and Streat (a firm) and Others (1995) 70 P&CR 627, concerning conditions attached to permission where the development materially departed from that permission, did not require the inspector to decide whether condition 3 remained enforceable. That question was outside the remit of the section 73A appeal. The issue could instead arise in an application under section 191 or in enforcement proceedings.
4. Circular 11/95’s requirement that conditions be enforceable concerns whether a condition is capable of enforcement in practice, including whether it is sufficiently precise and whether a breach can be detected and proved. It does not address a condition that has ceased to be enforceable because the enforcement period has expired, or a development that was unauthorised from the outset.
5. Even if the inspector had been required to consider the claimant’s legal argument, it could not realistically have affected the planning assessment. The alleged inability to enforce the condition against existing bungalows had little or no bearing on whether the condition remained justified. The decision was therefore not unlawful and no useful purpose would have been served by quashing it.
6. Unsolicited evidence and submissions sent after the hearing, which could have been provided earlier and had not been addressed by the opposing party, were not considered. The claim was dismissed, with the claimant in principle liable for the first defendant’s costs, provisionally assessed at £4,000.

The inspector dismissed the claimant’s appeal under section 78 of the Town and Country Planning Act 1990 on 30 April 2008. The Administrative Court dismissed the subsequent section 288 challenge.