25.01.2021

Make do and amend: more case law on the variation of planning conditions

The scope and limitations of local authority powers to amend or vary conditions has attracted more than its fair share of judicial attention of late.  Following in the footsteps of Lambeth and Finney comes the first instance decision in Parkview Homes Limited. *

In the words of David Elvin QC, who heard the case whilst sitting as a Deputy High Court Judge**, it is a case which: 

"illustrates once again, the difficulties caused when a local planning authority purports to grant permission under s. 73 without sufficient care as to its relationship with the parent permission."

The case has, at its heart, a conflict between a late night bar and music venue, which had been operating in breach of planning conditions, and the amenity interests of the future occupiers of a number of flats that had been granted planning permission in the property next door; which were in the process of being built out. 

The detailed history, which is well worth reading, is set out in the judgment itself.  For the purposes of this note, however, the key facts are as follows:

• The original permission, under which the bar had purported to operate, had authorised a mixed bar and restaurant use at the property. 
• When the permissions for the adjacent residential development was granted, the Council's environmental health officer  was satisfied that noise mitigation provided by the residential development would be adequate for the likely noise levels created by the bar's lawful use.  
• The EHO did not reach the same conclusion for the actual use of the bar, where  the EHO considered that "It is debateable whether any reasonable noise mitigation between the properties would be totally effective in protecting new dwellings from intrusive noise from music levels found in a nightclub" concluding that "The protection of residents from excessive noise intrusion through the party wall is dependent on the adjacent property reverting to its lawful planning use and significantly reducing sound levels generated within"
• Despite the Council having recognised the importance of the noise issue to the adjacent residential properties, in 2019, it granted a s.73 Permission to the Vestry that amended a number of conditions that were attached to the original permission - including those governing noise levels at the property and those relating to its opening hours.  
• Crucially, whilst the Council considered that the setting of a noise limiter would be vital to controlling noise levels on the amended permission - this was not secured by condition on the permission itself. Instead an informative was added to the consent, which expressly acknowledged that the requirement could not be enforced.  

The Claimant challenged the grant of the s.73 Permission on four grounds:

1. The s. 73 Permission amounted to an unlawful variation of the Original Permission that is beyond the scope of the Council's powers under section 73 of the 1990 Act
2. That reliance upon an informative attached to the s. 73 Permission to secure mitigation necessary to make the development acceptable was unlawful
3. The failure to publish the additional EHO consultation responses or consult the Claimant on the revised noise mitigation proposals was procedurally unfair; and
4.  It was irrational to conclude that the proposed noise mitigation measures would ensure that there would be no harmful impact on the future residential occupants of 19 Southgate in light of the Council's previous conclusions  on the issue and in the absence of any further assessments to demonstrate that acceptable noise levels could in fact be secured.

The Council did not contest the Claim, or take part in the proceedings, which were instead defended by the Interested Party. 

In finding for the Claimant on both Grounds 1 and 2, the Court held that: 

Ground 1

1. In my judgment the s. 73 Permission infringes the Arrowcroft principle since the restriction imposed by the new condition 2 (reading the description of Class A4 correctly as agreed) is inconsistent with the description of the development in the Original Permission as repeated in the operative parts of the s. 73 Permission. It is clear from Finney that the operative terms of a permission cannot be changed pursuant to s. 73 and although the s. 73 Permission does not purport to amend the operative words, contrary to the ratio in Finney, it seeks to create the same effect by imposing conditions inconsistent with it and to a more significant extent than the original restriction on takeaway food. Had the application been made as an ordinary planning application, the issue could have been dealt with simply by granting planning permission for a drinking establishment and imposing a condition preventing change within the UCO if that were considered justified.

.....

1. It appears to me that the Council confused the nature of the uses sought and the form of the permission in trying to give effect to s. 73 within their powers. The existence of the CLEUD does not appear to me to allow a different approach to be taken under s. 73 to the variation of conditions since it exists alongside the permission and no conclusions was reached in the grant of the CLEUD as to compliance with the conditions. In my judgment, this has resulted in a permission which has had conditions imposed that are inconsistent with the original permission, purported to grant permission for something other than originally permitted and other conditions that were not consistent with attempt to limit the new permission."

Ground 2

1. There is no doubt that impact on residential amenity through noise from the nightclub-type use of the Vestry was a consistent thread in EHO advice in 2018 and 2019. Its importance was recognised by the delegated report itself and Mr Wills does not dispute it. However, there was a breakdown in the logic of the decision in failing to follow through that need to resolve the potential impact on residential amenity.
   

....

1. In my judgment, it was perverse of the Defendant through its officers to note the importance of the limiter but to fail to secure compliance by some means, or to consider deferral or even refusal, if compliance could not be secured. The informative itself recognises the difficulty and acknowledged that "the applicant shall not be beholden to the aforementioned informative" but perversely added that
   
2. "it is considered important that they are specified on any final decision notice in order that the reasoning for the conditions are explicitly explained."

Grounds 3 and 4 were not determined, but the Court held that both grounds 'had substance' concluding that: 

1. "This is a case of multiple errors in the decision-making process, including in the consultation process, and in the substance of the permission issued, where I cannot conclude that it is highly likely that the outcome would not have been substantially different."

One of the more interesting aspects of the Judgment is hidden in the analysis of Ground 1. The Interested Party had argued that there should be a distinction drawn between those types of s.73 consent to which Finney should apply and those which it should not.  This was given very short shrift by the Court, which held that:

1. With regard to the applicability of those authorities, I see no basis for drawing a distinction between a s. 73 permission which gives consent to modify an existing development and one which acts "as an alternative to an unimplemented original permission", as Mr Wills submitted. It appears to me that the legal limits on the use of the provision apply to all s. 73 applications and it would be wrong to read the specific facts of Finney to limit its effect, especially given the other restrictions on the use of s. 73 set out in Arrowcroft.

In short, the case serves as a very pointed reminder that:

• s.73 Permissions can be used to amend conditions, but not to fundamentally change the use or nature of the development that was originally permitted (for this a new Planning Permission will be required).
• Ensuring that you remain within the scope of s.73 powers requires clarity on what the original permission actually consented in the first place.
• The recent case law on Finney applies to ALL s.73 consents - there is no distinction between them; and
• It is generally not a good idea to try and secure necessary mitigation measures by informative

* NB: In the interests of full disclosure, I acted for the claimant in this matter; as did Alex Greaves of Francis Taylor Buildings. Whilst writing about your own case is, arguably, somewhat uncouth, it does remain an interesting one - so please excuse the lack of manners! 

** and who, it turns out, is just as forensic as a judge as he is as an advocate. Having watched the hearing in full, I now feel extremely sorry for anyone who faces him on cross examination! 

This ground illustrates once again, the difficulties caused when a local planning authority purports to grant permission under s. 73 without sufficient care as to its relationship with the parent permission. See, on different facts, R (Reid) v Secretary of State [2002] EWHC 2174 (Admin) and London Borough of Lambeth v Secretary of State [2019] 1 WLR 4317. In both those cases, the Court considered that the errors that had been made were not fatal to the permission. I am less sanguine about such an outcome here and the Defendant has itself accepted that it made an error of law.”