Celina Colquhoun s73 challenge success: B. Atwill v New Forest National Park Authority

Mr Justice Lane handed down judgment yesterday (22 March) in Atwill v New Forest National Park Authority [2023] EWHC 625 (Admin) granting Mrs Atwill’s claim for judicial review against the Authority’s decision to grant permission purportedly pursuant to section 73 of the Town and Country Planning Act 1990 for an amended dwelling in the face of enforcement action against an existing one. The Claimant was successful on all but one of her 7 grounds of claim.

The Claimant had drawn the Authority’s attention , inter alia, to the fact that the dwelling built on the subject site did not accord with permission previously granted for a replacement dwelling as well as to the fact that, due to a number of discrepancies in the details of that permission, the permission  was in any event unimplementable. The Authority enforced against the dwelling (as well as an outbuilding) requiring  demolition which was appealed. Prior to the appeal’s determination however the Authority agreed to consider and then granted permission under s73 for a dwelling purportedly based upon the unlawful dwelling and the earlier planning permission.

The judge accepted the Claimant’s case, applying Commercial Land [2002] EWHC 1264 (Admin) that the Authority had been wrong to conclude that the original permission been lawfully begun through initial demolition works of the replaced dwelling. This meant that the permission had either lapsed or, if not, that no condition extending the 3 year time limit to commence could be imposed contrary to s73(5). The judge also agreed that the permission was indeed unimplementable in any event.

In addition aside from these grounds the judge agreed that the Authority had (contrary to the CA’s judgment in Finney  [2019] EWCA Civ 1868 and more recently James Strachan KC’s judgment in Armstrong [2023] EWHC 176 (Admin) ) been wrong to allow a change to the operational part of the permission and had sought to impose unlawful conditions in respect of lighting and had been wrong to remove a condition which had controlled the use of an outbuilding.

Celina Colquhoun advised and represented the successful Claimant and was instructed by Emily Williams at Addleshaw Goddard.

View the judgment here.