Allied London Property Investment Ltd v Secretary of State for the Environment and another

Outline planning permission — Extension of time for approval of reserved matters — Inspector refusing application for extension of time — Proper approach to decisions on such applications — High Court allowing application to quash decisionOutline planning permission was granted on appeal by the Secretary of State for the Environment on February 12 1991 for the construction of a retail park of class A1 and A3 retail units with access on land adjoining Brielle Way, Queenborough, Isle of Sheppey. Condition 2 specified that an application for approval of reserved matters had to be made within three years from that date. On December 10 1993, there having been a lack of commercial interest, an application was made under section 73 of the Town and Country Planning Act 1990 for an extension of an additional period of the time within which an application for approval of the reserved matters could be made. On February 2 1994 a decision was issued granting an extension period of one year for an application for approval of reserved matters. A further application was made on October 1 1994 to extend time for the application for approval of reserved matters which was refused. The applicants appealed unsuccessfully against that refusal which was given in a decision letter of the inspector on September 8 1995. An application was made to the court to quash the decision letter. Section 73 was concerned with applications for planning permission for a development without complying with conditions, subject to which a previous planning permission had been granted. Section 73(2) allowed a planning authority to consider only the question of the conditions subject to which the permission had been granted. Section 73(4) specified that the provision did not apply if the previous planning permission was granted, subject to the time within which the development was to have been begun and that time had expired. Held The application was granted. 1. The scope of the considerations arising under section 73(2) was significantly more restrictive than when the question of principle was at large in a normal planning application. Only the question of conditions could be considered. As Circular 19/86 — Housing and Planning Act 1986: Planning Provisions — advised, the planning authority might not go back on their original decision to grant planning permission. 2. The authority must consider: the condition; the reason for it; its function; the degree to which it made the development acceptable; and whether variation would, in this context, be acceptable. 3. Section 73 clearly required that, as a matter of construction as to its scope, no distinction was drawn between time conditions and other conditions. 4. The decision maker must consider the development plan and other material conditions when discharging the exercise under section 73. If the development plan had material relevant to the decision, that would have the legal and policy implications respectively set out in section 54A and PPG1 — General Policy and Principles. 5. The decision maker should not exclude from his mind the effects of his decision. He would err in law if he were to leave out of the planning balance entirely the implications which would flow from the result of a favourable, as opposed to an unfavourable, decision. 6. The purpose of the relevant powers was to consider the acceptability of existing and proposed conditions; those powers could not be exercised for the ulterior purpose of considering the acceptability of the development as a matter of principle where, as in the instant case, a refusal under section 73 might result in the original planning permission being incapable of implementation. 7. On that basis the decision letter was clearly flawed. Alice Robinson (instructed by Kingsley Smith & Co, of Chatham) appeared for the applicants; Timothy Straker (instructed by the Treasury Solicitor) appeared for the Secretary of State.