Redrow Homes Limited v Secretary of State for Levelling Up, Housing and Communities & Anor

Section 73 of the Town and Country Planning Act 1990 permits development without compliance with specified conditions. It cannot alter the description of development authorised by the original permission. A fresh section 73 permission does not, where the original permission has been implemented and relevant obligations have arisen, provide a means of escaping or reducing existing section 106 obligations. An inspector may consider a fresh planning obligation offered with a section 73 appeal, but may reject it on planning merits where it does not secure infrastructure forming an integral part of the approved development. Planning decision letters must be read as a whole, by an informed reader and without excessive legalism.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s dismissal of its section 78 appeal. The appeal concerned an application under section 73 to remove a condition from a substantially completed residential development at Lymington Shores. The development description included a pedestrian bridge over a railway, and a section 106 obligation required its construction before occupation of specified dwellings.

The claimant offered unilateral undertakings which would replace the existing trigger arrangements with less onerous obligations. The inspector dismissed the appeal, concluding that the undertakings did not secure the bridge in the agreed terms. The issues were whether the inspector misunderstood her powers under section 73 and whether her reasons were legally adequate.

1. Claim dismissed. The inspector had not treated section 73 as depriving her of power to consider a fresh planning obligation. Read as a whole, the decision letter showed that she understood the legal position and rejected the proposed undertakings on their planning merits.
2. Section 73 permits an application to develop land without compliance with conditions previously imposed. It permits different or no conditions, but does not permit alteration of the description of development. A successful application creates a fresh permission while leaving the original permission intact.
3. The footbridge was an integral part of the approved development. The inspector was entitled to regard obligations securing its delivery as necessary and to conclude that undertakings requiring only five dwellings to remain vacant, or payment of a capital sum, were materially less effective than the original arrangements.
4. The inspector’s reference to the undertakings being outside the scope of section 73 was infelicitous but, read with the surrounding reasoning, meant that they were inadequate mechanisms because they did not secure the bridge in the terms originally agreed. Her reasons were therefore intelligible and sufficient under the principles summarised in St Modwen Developments.
5. Norfolk Homes was materially distinguishable. There, the original permission had not been implemented and the section 106 obligations had not arisen. Here, the permission had been implemented and substantially completed, and the obligation to construct the bridge had arisen. The court observed, obiter, that section 73 could not be used to wipe out obligations already arising under an extant section 106 agreement. The precise position where an obligation had arisen but was not yet enforceable was left for another case.

The claimant brought a section 288 challenge to the decision of a Planning Inspector dismissing its section 78 planning appeal. The claim was determined at first instance by the High Court (Planning Court).