Freddie Reid v Secretary of State for Levelling Up, Housing and Communities

An application under section 73 of the Town and Country Planning Act 1990 may remove conditions which restrict the statutory benefit of the Use Classes Order without altering the operative description of the permitted development. The resulting change of use is permitted by operation of law, not by the description of the planning permission. Whether the conditions should be removed remains a matter of planning judgment. A section 73 application concerns the conditions attached to a particular planning permission. Referring also to an historic permission may be otiose, but does not necessarily invalidate the whole appeal where the live issues are clear.

The claimant sought statutory review under section 288 of the Town and Country Planning Act 1990 of an inspector’s dismissal of his appeal concerning conditions attached to planning permissions for holiday accommodation at Kilvington Lakes.

The claimant’s section 73 application sought removal of conditions restricting occupation to holiday use and requiring an occupiers’ register. It referred both to a 2015 permission and to a later 2020 permission, which had replaced one of the relevant conditions. The inspector held that removing the conditions would conflict with the description of the development and declined to consider the planning merits. The issues were whether section 73 permitted the proposed removal of conditions and whether the reference to both permissions deprived the inspector of jurisdiction.

1. Ground 1 allowed. Section 73 is concerned with conditions, while the operative part of the permission—the description of the permitted development—endures. A condition which alters the nature of the permitted development is unlawful, but the addition of conditions and their removal do not necessarily raise identical considerations.

2. The description of holiday accommodation was not inconsistent with residential use permitted by operation of the Town and Country Planning (Use Classes) Order 1987. Under section 55(2)(f) of the Town and Country Planning Act 1990 and the Order, a change between uses in the same Use Class does not constitute development requiring planning permission. Conditions may remove that statutory benefit, but their removal does not alter the description of development.

3. The inspector therefore erred in treating removal of the conditions as a fundamental alteration or conflict with the description. Whether permanent residential use should be permitted was a matter of planning judgment. She unlawfully truncated that judgment by failing to consider the remaining planning issues, including countryside policy, highway safety, affordable housing, health care and public transport.

4. Ground 2 allowed. The inspector’s treatment of condition 21 in the 2015 permission was legally flawed. That permission was historic and condition 21 was not carried into the 2020 permission. It was irrational to treat removal of a condition restricting the statutory benefit of the Order as impermissible because it would render a purely historic condition unenforceable.

5. The preliminary jurisdiction point failed. A section 73 application concerns one particular planning permission and its conditions, so consideration of conditions from another permission is otiose. However, referring to the historic 2015 permission did not invalidate the entire appeal in these circumstances. The point had not been raised before the inspector, and the claimant had been denied a fair opportunity to address or cure it. The inspector’s decision was quashed.

This was a first-instance statutory review. The inspector dismissed the claimant’s appeal on the legal issue. This court allowed the claim and quashed the inspector’s decision.