Flemming & Ors, R (on the application of) v Wiltshire Council & Anor

An application under section 73 of the Town and Country Planning Act 1990 seeks a new planning permission, although the original permission remains capable of implementation. The planning authority must consider the development plan and other material considerations, but the scope of that exercise depends on the condition concerned and the effect of varying or removing it. Where the development is already built, the authority need not reconsider the principle of the existing development as if deciding an application for a wholly new greenfield scheme. It must, however, assess the material effects of the proposed change, including the difference between restricted temporary occupation and unrestricted permanent residential use. Planning officer reports are read fairly and as a whole. Judicial review is justified only where their overall effect significantly misleads the committee on material matters.

Members of the Oaksey Conservation Group challenged Wiltshire Council’s grant of planning permission under section 73 of the Town and Country Planning Act 1990. The permission removed conditions restricting eight existing buildings at Oaksey Park to holiday accommodation and preventing their use as permanent residences.

Permission to apply for judicial review was granted on one substantive ground: that the Council had misunderstood the planning issues relevant to a section 73 application. A further proposed ground concerning section 73A was accepted to be irrelevant. The central issue was whether the Council had unlawfully failed to reconsider the principle of residential development, the development plan and paragraph 55 of the National Planning Policy Framework when assessing the removal of the restrictions.

1. Claim dismissed. The Council’s decision was lawful.
2. An application under section 73 of the Town and Country Planning Act 1990 is an application for a new planning permission, but the original permission remains in force. The authority must have regard to the development plan and other material considerations. The exercise is more limited than consideration of a normal application for new development, and its extent depends on the nature of the condition and the practical effect of its removal. The court applied the approach in Pye v Secretary of State for Environment, Transport and the Regions [1998] 3 PLR 72.
3. Here, the buildings and their physical form already existed. The relevant question was therefore what difference unrestricted permanent occupation would make compared with restricted holiday occupation. The Council was not required to reconsider the site as if it were an application for new residential development on undeveloped countryside. It nevertheless had to consider the effects of the proposed unrestricted use.
4. Read fairly and as a whole, the officer reports considered the development plan, relevant local policies, paragraph 55 of the National Planning Policy Framework, residential amenity, education, waste, highways, infrastructure and the possible creation of a permanent residential community. The absence of an express finding that the proposal conflicted with the development plan was not material because the report assessed the relevant impacts and found no material additional effect warranting refusal.
5. The reports’ treatment of precedent was lawful. Any future applications would require case-by-case consideration, including marketing and financial viability evidence. The court applied the approach to officer reports in Oxton Farms, Samuel Smith Old Brewery (Tadcaster Ltd) v Selby District Council [1997] WL 1106: judicial review will not normally be warranted unless the overall report significantly misleads the committee about material matters. The court also accepted the approach to democratic planning decision-making described in Morge v Hampshire County Council [2011] UKSC 2.
6. On the disputed committee evidence, the court preferred the evidence of the Council’s officers and found that objectors were not prevented from addressing residential and other material impacts. The application was accordingly dismissed.

This was a first-instance judicial review. The judgment states that permission to apply was granted on 15 January 2015 by Gilbart J. The substantive claim was dismissed by the Administrative Court.