London,
29
November
2016

Good News for Developers

Pressland v The Council of the London Borough of Hammersmith and Fulham [2016] EWHC 1763 (Admin)

A recent High Court case, Pressland v The Council of the London Borough of Hammersmith and Fulham [2016] EWHC 1763 (Admin) ("the Pressland Case") opens the door for any developers unhappy with the conditions imposed on any permitted development rights prior to approval decision to apply for their variation or removal.

Section 73 of Town and Country Planning Act 1990 (TCPA 1990) allows developers to apply to a local planning authority for a fresh planning permission to carry out development without compliance with conditions which were attached to a grant of planning permission. This is commonly known as a "section 73 application".

Part 3 of the Schedule 2 to the General Permitted Development Order 2015 ("the GPDO") gives deemed permission for certain types of development. In particular, "use classes", such as a change of use from office to dwelling, are permitted subject to the criteria set out in each class and conditional on the developer making an application to the local planning authority for "prior approval" of certain matters.

In the Pressland Case, Mr Pressland had applied to the Council for prior approval for a change of use of an office building to three flats under the GPDO. The Council granted prior approval subject to 14 conditions. 11 weeks later Mr Pressland applied under Section 73 of the TCPA 1990 to remove 8 of the prior approval conditions. The Council refused to entertain the application on the basis that a section 73 application could only be made in respect of conditions imposed on the grant of a planning permission. In the Council’s view, conditions imposed on the grant of prior approval were not conditions of the planning permission itself, they were conditions of the prior approval. The Council also considered that section 73 is only available to “previous planning permissions” granted on an application to the Council excluding permissions granted by a development order. The High Court did not agree. The Court held that section 73 was not limited to permissions expressly granted by the local planning authority. It didn't matter how the permission was granted; deemed planning permission granted by way of a development order is “a previous planning permission” to which section 73 applies.

The Pressland Case is good news for developers because the High Court has decided that a section 73 application is not limited to planning applications expressly granted by a local planning authority but may also be used where deemed planning permission has been granted by way of a development order and the local planning authority has attached conditions to its prior approval. The local planning authority must then only consider the question of the conditions attached to the prior approval or planning permission, and leave the principle of development intact.

This case is of particular benefit to developers who may be unhappy with conditions imposed at prior approval stage because they can now utilise the section 73 procedure as a means of varying or removing conditions, rather than having to appeal under section 78 of the TCPA 1990 or submit a full planning application. This is a much quicker and cheaper procedure.

However, it is worth taking into account that the local planning authority can still refuse any applications made under section 73 of the TCPA 1990 if they feel the original conditions were necessary and that any future application would still be granted subject to these conditions. Appealing against the local planning authority's decision is possible, but the Planning Inspector will reconsider the entire application, not just the conditions imposed, and could therefore refuse the planning permission entirely.

If you would like more information or advice on the content of this article, please contact Sam Shurkin, Martha Grekos or any member of the Real Estate team.

Contact
photo:Sam Shurkin
Sam Shurkin
Solicitor
+44 (0)20 3755 5361
photo:Martha Grekos
Martha Grekos
Partner, Head of Planning
+44 (0)20 3755 5707
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