Implementation of planning permission

Roderick Morton reports on a High Court ruling that highlights the importance of checking implementation carefully where a developer claims to have permission.

In Atwill v New Forest NPA [2023] EWHC 625 (Admin) a developer obtained permission in 2018 for a new house in the New Forest National Park, to be built following demolition of an existing one. Demolition took place but the house which was built was very different from the permission. A neighbour complained. The NPA issued an enforcement notice requiring demolition. It was appealed and the appeal is pending. In the meantime, the NPA allowed the developer to seek retrospective permission under s73 TCPA 1990 for what was built; the application was made more than 3 years after the grant of permission but the council accepted the demolition as implementing the permission.  The council granted permission, subject to a lapse condition.

The neighbour challenged the council’s decision to grant permission. There were 7 grounds but only a couple are of interest in enforcement terms.

The neighbour argued that the 2018 permission was not implemented. As such it had lapsed. It could not now physically be implemented in any case. As it had lapsed, no s73 permission could be granted as s73 does not permit the extension of time to implement. The neighbour also argued that the council was wrong to call it a minor material amendment and that it was clearly outside the scope of s73. The council’s failure to reattach all relevant conditions from the 2018 permission to the s73 permission was also attacked.

As a reminder, s73 allows applications for permission for development without compliance with conditions to a previous permission. While often referred to as minor material amendments, those words are not part of s73. In most cases, the condition which is to be varied is the plans condition but, again, there is no such limit in s73. 

It is self-evident that if there is no permission (eg because it had lapsed), there is no condition and no scope for s73 to operate. 

Implementation of a permission is usually required within 3 years, otherwise it lapses. Implementation of an operational development permission takes place when development begins. S56 provides that development begins when a “material operation comprised in the development” is carried out. Material operation has a very wide definition and includes demolition or “any work of construction in the course of erection of a building”. But where what is built is too different from the permission, the material operation was not one “comprised in the development” authorised by the permission.   In such cases, the developer doesn’t implement the permission, they implement something else.

In this case, the judge decided that while demolition took place in time, what was eventually built was so different to what was permitted that the demolition could not be said to be related to the permission. The development was not implemented, the permission therefore lapsed and there was no scope for a s73 application. 

This shouldn’t be surprising since the clear basis of the enforcement notice is that what was built was not an implementation of the permission; indeed that was the NPA’s case to the pending enforcement appeal. It was odd, then, that that the NPA was arguing in favour of implementation in these proceedings.  Perhaps this was the reason the judge was willing to rule on what might otherwise be considered a matter of planning judgment.

The judge also found that the 2018 permission was unimplementable due to the way in which the new house had been built. While this was, she said, normally a matter of planning judgement, the evidence was so overwhelming that the NPA’s failure to take it into account vitiated the decision to grant permission.

A final ground which is of interest is the scope of s73. The recent case of Armstrong v SSLUHC [2023] EWHC 176 was cited. That case reminded us that s73 is about conditions, not whether the variation is minor. The PPG guidance was wrong on that score. The neighbour’s challenge that the council was wrong to call this a minor material amendment failed as it was irrelevant. However, where the s73 application seeks to change the “operative part” of the earlier permission (ie the actual grant of permission), it cannot be granted. Here, at least one element of the s73 application was outside the scope of the original permission.

From an enforcement perspective, the case is a useful reminder of the need to check implementation carefully where a developer claims to have permission. It is also a reminder of the limitations of s73. It is not unusual for a revised application to be invited as an alternative to formal enforcement action. Quite who decided to make that application a s73 one in this case is not recorded in the decision. It is not game over for the developer though as the enforcement appeal includes a ground (a) appeal for what was built. 

Roderick Morton is a partner at Ivy Legal. This article first appeared in Ivy Legal's monthly column for the Royal Town Planning Institute's Network for Planning Enforcement (NAPE) newsletter.