Barbara Atwill, R (on the application of) v New Forest National Park Authority

For the purposes of Town and Country Planning Act 1990, development is begun only by operations properly undertaken pursuant to the planning permission relied upon. Unlawful works cannot implement that permission merely because they include demolition. The assessment is objective and does not depend on the developer’s intention.

An application under section 73 may involve more than a minor material amendment, but it cannot alter the operative part or description of the permitted development. Section 73 cannot extend an expired commencement period or operate as an enforcement mechanism for unlawful development. A planning authority must also address material discrepancies between approved plans and the development capable of being built.

The claimant sought judicial review of the defendant planning authority’s decision to grant a section 73 variation of an earlier permission for a replacement dwelling, garage and associated works in the New Forest National Park.

The dwelling and outbuilding had been constructed differently from the approved plans. The authority had served an enforcement notice requiring demolition, but treated demolition of the original dwelling as lawful commencement of the earlier permission and granted a further variation concerning the as-built dwelling.

The challenge alleged, among other matters, unlawful commencement, inability to implement the earlier permission, omission of a garage-use condition, reliance on unlawful development, impermissible variation of the operative description, failure to comply with the conservation-area duty, and unclear lighting conditions.

1. Grounds 1 to 5 and 7 succeeded. Ground 6 failed. The section 73 decision was therefore unlawful.
2. For section 73 purposes, the operations relied upon to show commencement must be properly referable to, and undertaken pursuant to, the planning permission in question. Applying Commercial Land, Green, Silver and East Dunbartonshire, the test is objective. The authority could not rely on demolition alone where the subsequent building works constituted unlawful development outside the permission.
3. The question whether development had begun did not depend on whether the permitted development could ultimately be built out. Nevertheless, the authority’s reliance on the demolition and septic-tank works was unlawful because neither was properly referable to construction of the permitted dwelling. The condition allowing amendment of the as-built dwelling within two years unlawfully extended the commencement period contrary to section 73(5)(a).
4. The earlier permission was not shown to be implementable in accordance with its plans. Applying the interpretive approach in UBB Waste, the plans had to be read holistically and with common sense. The serious discrepancies in orientation, height and appearance required consideration. The authority’s failure to address them was a public-law error, notwithstanding that materiality ordinarily involves planning judgment. Melap Singh was distinguishable.
5. The authority unlawfully failed to repeat the garage-use condition. Class E of Part 1 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 did not apply, and the separate retrospective garage permission could not supply the condition once the varied permission was implemented.
6. Section 73 could not be used to impose conditions by reference to an unlawful as-built building or as an enforcement device. Following Armstrong and Finney, the decisive limit was that the operative part or description of the permission could not be changed. The addition of “details of lighting” was material, not de minimis.
7. The conservation-area consultation issue was a matter of planning judgment and was not made out. The lighting conditions, however, contained significant unresolved confusion and tension. The challenge therefore succeeded on ground 7.

First-instance judicial review. The claimant’s challenge succeeded on grounds 1 to 5 and 7, and failed on ground 6.