Pressland v The Council of the London Borough of Hammersmith and Fulham

Section 73 of the Town and Country Planning Act 1990 may be used to seek planning permission for development without complying with conditions attached to a permission granted by a development order. This includes conditions imposed when a required prior approval is granted. Planning permission is granted subject to conditions imposed either when the permission itself is granted or when a subsequent required approval is granted. The fact that the original permission has general application does not prevent a section 73 application relating to particular land. The local planning authority must determine the application on its merits and may refuse it if the same conditions should remain.

The claimant and an interested party sought prior approval under Class O of Part 3 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 2015 for conversion of offices into residential flats. The Council granted prior approval subject to fourteen conditions. The claimant then applied under section 73 of the Town and Country Planning Act 1990 to carry out the development without complying with eight conditions.

The Council treated the application as invalid, reasoning that section 73 did not apply to conditions attached to prior approval or to permission granted by a development order. The central issue was whether that approach was legally correct.

1. The claim succeeded. The Council erred in law by refusing to treat the section 73 application as valid.
2. Conditions imposed under paragraph W(13) of the Town and Country Planning (General Permitted Development) Order 2015 are conditions subject to which the relevant Class O planning permission was granted. The statutory scheme recognises conditional approvals, both where approval is required by a condition imposed on an ordinary planning permission and where approval is required under a development order.
3. The distinction between planning permission and approval remains legally significant. Approval considers a more constrained issue and does not normally reopen the principle of development. Nevertheless, once an approval is granted subject to conditions, those conditions form part of the conditions subject to which the planning permission has been granted. Otherwise, relevant breaches could not be enforced under Part VII of the Town and Country Planning Act 1990.
4. Section 73 is not limited to permissions granted following an application to a local planning authority. Section 58 identifies several routes by which permission may be granted, and section 73 contains no restriction equivalent to that in section 97. The fact that a development-order permission may be general in scope does not alter this conclusion. A section 73 application concerns particular land, and any uncertainty may be addressed through appropriate conditions.
5. The permission granted by the development order itself, rather than by the prior approval, is the relevant permission. Prior approval determines when and how that permission may be relied upon and may define its permitted details. Authorities concerning accrual of permission addressed different questions and did not establish otherwise.
6. The Council remained entitled to refuse the application if the same conditions should be retained. Differences in consultation requirements might also be relevant to the merits. Those matters did not justify treating the application as invalid.

First-instance judicial review. Permission to bring the claim had been granted by Gilbart J. The claim was determined by the High Court (Administrative Court).