Friends Of The West Oxfordshire Cotswolds, R (on the application of) v West Oxfordshire District Council

Quashing an unlawful administrative act ordinarily operates retrospectively. A planning permission cannot be commenced by operations breaching a true pre-commencement condition that goes to the heart of the permission, unless enforcement would itself be unlawful. In a section 73 application, the court may determine that issue where it concerns jurisdiction and has not previously been decided. A permission incapable of lawful completion is not a fallback development. The decision-maker must establish a lawful ability and real prospect of the fallback, then assess its likelihood and planning implications. A section 73 permission granted after expiry of the original permission, without lawful commencement, is outside the statutory power.

The claimant sought judicial review of the defendant council’s decision to grant the interested party planning permission under section 73 of the Town and Country Planning Act 1990. The variation altered conditions attached to an earlier permission for residential and supported-living development beside Ancient Woodland within the Cotswolds Area of Outstanding Natural Beauty.

The challenge concerned the retrospective effect of an earlier quashing order, lawful commencement of the original permission, treatment of that permission as a fallback, the council’s handling of expert objections, and alleged predetermination or apparent bias.

1. Ground 1 succeeded. The earlier approval of pre-commencement conditions had been quashed with retrospective effect. The conditions had therefore never been discharged.
2. The court could determine whether conditions 8, 12 and 13 engaged the Whitley principle because the issue concerned the council’s jurisdiction to grant a section 73 permission and had not previously been determined.
3. The conditions were true pre-commencement conditions and, insofar as they required the 5 metre ecological buffer and protection measures, went to the heart of the original permission. The material operations carried out in breach of them were unlawful and did not commence the permission. Enforcement action remained lawfully possible.
4. By the date of the section 73 grant, the original permission had expired without lawful commencement. Section 73(4) therefore deprived the council of power to grant the varied permission. The contrary temporal approach in PowerGen was obiter and had been overtaken by section 73(5).
5. Ground 3A succeeded. The original permission could never be implemented because its plans could not provide the required 5 metre buffer and condition 8 did not permit a lesser buffer. It was not a fallback development. The council also failed to apply the required two-stage fallback analysis, including the likelihood of occurrence.
6. Ground 2, Ground 3B and Ground 4 failed. The claim succeeded and the section 73 permission was quashed. Consequential orders were reserved.