Vue Entertainment Ltd, R (on the application of) v City of York Council

Section 73 of the Town and Country Planning Act 1990 permits planning conditions to be varied, subject to the statutory restrictions concerning implementation time. It is not confined by statute to so-called minor material amendments. The power cannot be used to alter the planning permission itself or to make a fundamental alteration to the proposal granted. The assessment requires consideration of the permission as a whole and of its precise terms. A substantial change to one element will not necessarily be unlawful if the grant of permission itself remains unchanged. Proper notification, consultation and consideration of representations may also prevent procedural prejudice.

Vue Entertainment Limited sought judicial review of City of York Council’s decision to grant planning permission under section 73 of the Town and Country Planning Act 1990. The permission varied conditions attached to an earlier permission for a community stadium development, including an increase in the proposed cinema from 12 to 13 screens and an increase in capacity.

The claimant argued that the amendment constituted a fundamental change which could not lawfully be achieved under section 73. The central issue was whether the statutory power permitted the council to grant the varied permission.

1. The claim was refused. The council had lawful power to grant the section 73 application.

2. Section 73(2) requires the authority to consider only the conditions subject to which planning permission should be granted. Apart from the statutory restrictions concerning time, the subsection does not limit the nature of the condition that may be amended. The section is not restricted by the statutory use of the word minor in planning guidance.

3. The principle in R v Coventry City Council ex parte Arrowcroft Group PLC, cited as Property and Compensation Reports, page 70, was that conditions could not be varied where the variation altered the grant of permission itself or amounted to a fundamental alteration of the original proposal. That principle was confined to cases where the precise terms of the grant were changed.

4. The varied permission continued to authorise the same development. Nothing in the grant limited the cinema’s floor space, number of screens or capacity. The proposed increase therefore varied the conditions and did not vary the permission itself. Fundamental variation must be assessed by reference to the permission as a whole. The court left open the possibility that a condition might produce a fundamental variation in the overall effect of a permission even without altering its express terms, but found that this case did not do so.

5. There had been proper notification, consultation and opportunity to make representations. The development was subject to environmental impact assessment requirements, and a supplementary report had been produced. The claimant suffered no procedural prejudice. Costs were awarded to the council, subject to the Aarhus cap of £10,000, and leave to appeal was refused.