S73 Applications and consents granted under a Development Order

A recent decision of the High Court in Pressland v The Council of the London Borough of Hammersmith and Fulham [2016] EWHC 1763 (Admin) has held that an application made under S73 of the Town and Country Planning Act 1990 ("TCPA 1990") may be made to develop land without compliance with conditions attached to a permission granted by a development order.

The TCPA 1990 requires planning permission to be granted for the "carrying out of any development on land" (S57(1) TCPA 1990) and development is defined as the "carrying out of building, engineering, mining or other operations in, on, over or under the land or the making of any material change in the use of any buildings or other land" (S55(1) TCPA 1990).

Planning permissions are generally granted in one of two ways:

  • Express grant by the local planning authority or the Secretary of State; or
  • Deemed consent through a development order such as the Town and Country Planning (General Permitted Development) (England) Order 2015 SI 2015/596) ("GPDO 2015").

The GPDO 2015 is, in effect, a national grant of planning permission which grants deemed consent without the requirement for a planning application.

In this most recent case the Applicant was seeking to change the use of a building from office use to three residential flats, and the Applicant sought a determination as to whether prior approval was required for such a change of use.

Part 3 of Schedule 2 of the GPDO 2015 deals with such changes of use and the relevant permitted development right is set down in Class O of the GPDO 2015.

Class O states:

"Development consisting of a change of use of a building and any land within its curtilage from a use falling within Class B 1(2) (offices) of the Schedule to the use Classes Order, to a use falling within Class C3 (dwelling houses) of that Schedule".

The Council determined that prior approval was required and prior approval was granted subject to 14 conditions.  At a later date a S73 application was made to make the change of use without compliance with 8 of the 14 conditions.

S73 of the TCPA 1990 allows an application to carry out development without compliance with conditions which were attached to a grant of planning permission.  The Council can determine S73 applications in three ways: refuse, grant unconditionally or subject to new conditions.

In this case the Council determined that the S73 application was invalid because it had been made in respect of a prior approval application. The Council contended that the Applicant's case failed to distinguish between the grant of prior approval and the grant of planning permission.

The Applicant sought to challenge the Council's decision by way of judicial review.

The High Court, allowing the appeal, held that where a previous planning permission was granted by development order these conditions could be removed by a S73 application. S73 considers that planning permission is granted subject to conditions where the local planning authority imposes the conditions:

  • In an express planning permission; or 
  • Gave prior approval for deemed planning permission.

This will be of interest to developers and planning authorities alike. Developers that are unhappy with conditions attached to their prior approval can now look to utilise the S73 procedure as a means of varying or removing such conditions, rather than the more costly and time-consuming option of an appeal under S78 TCPA 1990. 

A link to the case can be found here

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