Parkview Homes Ltd, R (On the Application Of) v Chichester District Council

A permission under section 73 of the Town and Country Planning Act 1990 may vary conditions, but cannot change or substantially contradict the operative description of the development authorised by the parent permission. A condition which removes a principal component of the permitted use is unlawful. Planning authorities must also secure, by enforceable means, mitigation measures which they regard as necessary to make development acceptable. Reliance on an unenforceable informative is irrational where compliance with the relevant mitigation is essential. A person intimately concerned with the resolution of a material planning issue should be fairly consulted on revised measures. Relief should not be withheld under the Senior Courts Act 1981 where material errors mean that the court cannot be highly likely that the outcome would have been substantially the same.

The claimant sought judicial review of the Council’s delegated decision to grant Sussex Inns Limited permission under section 73 of the Town and Country Planning Act 1990 to vary conditions attached to an earlier permission for a mixed food-and-drink use with ancillary accommodation. The variation extended opening hours and imposed noise-control conditions.

The claimant owned adjoining premises being developed for residential use and challenged the decision on the grounds that the section 73 permission exceeded the statutory power, relied on an unenforceable informative, was procedurally unfair, and irrationally assessed noise impact. The central issues were whether the revised condition was inconsistent with the original operative permission and whether the noise mitigation arrangements adequately protected future residents.

1. Ground 1 succeeded. Section 73 permits variation of conditions, but not amendment of the operative description of the development. The limits apply whether the application concerns modification of an existing development or operates as an alternative to an unimplemented permission. The principles in R v Coventry CC ex p Arrowcroft Group plc [2001] PLCR 7 and Finney v Welsh Ministers [2020] PTSR 455 applied.
2. The original permission had to be understood by reference to the A3 use class in force when it was granted. That permission authorised a mixed pub and restaurant use. Following the later disaggregation of the use class, it represented a mixed A3/A4 use. The new condition limiting the premises to A4 use removed the restaurant element and was inconsistent with the operative grant. It therefore had the effect of granting permission with one hand and taking it away with the other. The contradictory references to takeaway food, kitchen facilities and public-house use reinforced that conclusion.
3. Ground 2 succeeded. The Council recognised that noise mitigation was important and that the noise limiter might not alone achieve the required criteria. It nevertheless failed to secure calibration of the limiter or any further sound testing by condition or obligation. The informative expressly acknowledged that the applicant was not bound by it. It was irrational to regard the mitigation as necessary while leaving its implementation unenforceable. The Council should have secured compliance, deferred the decision, or refused permission.
4. Ground 4 also had substance because the decision was made without the noise testing identified as important to assessing residential amenity. Ground 3 likewise appeared substantial. The claimant was intimately concerned with the noise issue and should have been fairly consulted on the revised mitigation measures. The decision would in any event have to be reconsidered after fresh consultation.
5. The errors were material and went to the major objection and the substance of the permission. Applying section 31(2A)–(2C) of the Senior Courts Act 1981, the court could not conclude that it was highly likely that the outcome would not have been substantially different. The decision and the section 73 permission were quashed.