Lawson Builders Ltd & Ors v Secretary of State for Communities and Local Government & Anor

Where development has been completed in breach of a condition precedent, an application under section 73 of the Town and Country Planning Act 1990 for permission without compliance with that condition may, in substance, require a retrospective grant under section 73A. The resulting permission takes effect immediately and its conditions create current obligations; the developer cannot elect simply to ignore it. The absence of an express reference to section 73A, or of a wider review of the development’s planning merits, is not decisive. The scope of the inquiry depends on the nature and stage of the development and the purpose of the conditions.

The appellants had constructed two dwellings under a 2004 planning permission, in breach of conditions requiring highway and pedestrian works before construction, use or occupation. In 2009 they applied to vary or remove those conditions. On appeal, the inspector granted permission for the two dwellings without compliance with the original conditions, subject to new conditions requiring revised highway works within specified periods.

The dwellings had already been completed, and one was occupied, before that decision. The local planning authority later granted lawful development certificates but stated that the new conditions remained enforceable. A further inspector upheld that approach under section 195. Supperstone J dismissed the appellants’ challenge under section 288 and their related appeal against conviction for breach of a breach of condition notice. The central issue was whether the 2010 decision was a retrospective permission under section 73A, rather than merely a variation under section 73, and whether the appellants could choose not to implement it.

1. Appeal dismissed. The Court of Appeal, comprising Pitchford, Davis and Lewison LJJ, held that the 2004 permission had not been lawfully implemented. The central question was whether the appellants could ignore the 2010 permission. They could not: the first appellant had obtained the permission sought, and, subject to challenge or further application, it was valid and took immediate effect.
2. Section 73 requires a new permission, either unconditionally, subject to different conditions, or by refusal where the original conditions remain appropriate. It does not graft new conditions onto the earlier permission. Since the development had already been completed in breach of a pre-condition, there was no remaining proposed development to which prospective pre-conditions could attach. The varied conditions therefore operated as current obligations.
3. The power for that result was supplied by section 73A, read with section 70. Section 73A creates a general power to grant permission retrospectively for development already carried out, including development carried out in breach of conditions attached to an earlier permission. It was implicit in the application that success would produce retrospective permission. The inspector did not need expressly to identify section 73A or to re-classify the application.
4. The decision in R (Wilkinson) v Rossendale Borough Council [2002] EWHC 1204 (Admin) established that a section 73A application may require consideration of wider planning merits, unlike the confined inquiry under section 73. The present court explained that section 73 inquiries may themselves be wide-ranging where the purpose of the conditions engages important planning policy, while section 73A inquiries may be wider or narrower depending on the development and circumstances.
5. On these facts, the planning merits of the dwellings were not in issue. The dispute concerned highway access and safety, and the inspector’s consideration of those matters was sufficient. The absence of wider planning analysis did not show that section 73A had not been used. The appellants had no choice between permissions: the earlier permission could not be implemented, and completion of the development before the later grant meant that the later permission was automatically implemented. The argument based on section 75(3) did not alter that conclusion.

• Court of Appeal (Civil Division): Appeal from the judgment of Supperstone J handed down on 7 November 2013. Appeal dismissed.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Supperstone J dismissed the section 288 challenge and the related appeal against conviction for failing to comply with a breach of condition notice.
• Planning appeal: On 15 October 2012, a planning inspector upheld the local authority’s treatment of the 2010 permission as retrospective and enforceable. The 2010 permission had been granted on appeal by a planning inspector on 7 September 2010.