The scope of section 73 planning applications

The High Court has addressed the scope of section 73 planning applications and in particular whether they can be used to omit conditions which remove rights under the Use Classes Order.  In Reid v Secretary of State for Levelling Up Housing and Communities [2022] EWHC 3116 (Admin) planning permission had been granted for self-catering holiday units and other development.  On this occasion the units were buildings rather than caravans.  A condition provided ‘Notwithstanding the provisions of Part C, Class C3 ‘Dwelling Houses’ of the Schedule of the Town and Country Planning (Use Classes) Order 2005, (or any order revoking or re-enacting that Order), the premises shall be used for the purpose of holiday accommodation only and for no other purpose, including any other purpose within Class C3 of the Order.’  A register of occupiers was also required.

A section 73 planning application was made for permission without the conditions relating to the restriction on occupation. If granted the use of the units could then be changed to permanent residential within use class C3.

A Planning Inspector held that the application was invalid.  She said:

“if the conditions were to be removed it would enable the 34 units to be used in an unrestricted way. This would cause conflict with the original description of development which specifies that the use of these units is as self-catering holiday units and so clearly sought a restricted use.”

Mr Reid, the site owner, challenged the decision under section 288 of the Town and Country Planning Act 1990.

Mrs Justice Farbey distinguished between what a planning permission was granted for, and what could later be done if the authorised use was carried out:

“33. … In Waverly District Council v Secretary of State for the Environment [1982] JPL 105, Hodgson J held:

“If there was planning permission for use A and the land was actually being used for use A, then no planning permission was needed for use B, if use B was not a material change of use from use A. This was not because planning permission for use A included use B but because there was no material change of use from the one being used, that question being of course one of fact and degree.”

…

36. In my judgment, the reasoning of Hodgson J in Waverly applies with equal force to a change of use in reliance on the Order. Planning permission for one described use (holiday accommodation) does not include permission for a non-described use (residential accommodation) in the same Use Class; but no planning permission is needed for a change from one to the other because Parliament has excepted such a change from counting as development.  Put differently, the change of use is permitted not by the description of the permitted development but by operation of law (i.e. by the operation of section 55(2)(f) of the Act and the Order which has been made under it).
37. For similar reasons, a grant of permission for a particular described use cannot in itself constitute a condition inconsistent with consequential development permitted by the Order; otherwise, the operation of the Order would be curtailed in a way which could not have been intended (Dunoon Developments v Secretary of State and Poole Borough Council (1993) 65 P & CR 101, 107). It is nevertheless lawful for a local planning authority to impose a condition which removes the statutory benefit of the Order and restricts the use of land to that which is described in the planning permission (Dunoon, 104).”

Farbey J held on section 73 and the particular appeal:

“Analysis and conclusions

38. Section 73 is concerned only with changes of conditions. The operational part of the planning permission (the description of what is permitted) endures and cannot be changed.  It is plain from the case law that the imposition of a condition altering the nature of what was permitted is unlawful.
39. The rationale for such a conclusion is not hard to discern. A public decision-maker cannot adhere to a description of permitted development while at the same time deciding to impose a condition that is inconsistent with that description.  Such a decision would be irrational.  To echo the words of Sullivan J in Arrowcroft, it is irrational to give with one hand and take away with the other.
40. There was some discussion before me about whether Finney and Arrowcroft only prohibit conditions that are logically inconsistent with the permitted development, reflecting Sullivan J’s reference to “an inconsistent condition” in para 33 of his judgment.  If Arrowcroft refers to logic, the court is as well-placed as a planning inspector to assess the conditions: there is no scope for an inspector’s planning judgment.  If, on the other hand, the question is whether the conditions amount to a “fundamental alteration” of the permitted development (to which Sullivan J also refers in para 33 of Arrowcroft), the question for the inspector may be one of fact and degree involving planning judgment exercisable by the inspector (subject to public law grounds of intervention).  Finney refers at para 43 to a “conflict” between the description and a condition which “alters the nature”  of what was permitted.  I do not need to determine the precise delineation between logic and judgment in the present case: it does not matter.
41. Both Finney and Arrowcroft concerned the adding of conditions. That was not the issue before the inspector who had to consider the removal of conditions.   It is not inevitable or even clear that the removal of conditions gives rise to the same considerations as their addition.   In adding conditions, a decision-maker is not permitted to intrude upon the operative part of the permission.  It is difficult to see how the removal of a condition could give rise to such intrusion.  When a condition is removed, the operative part of the permission remains intact, albeit in an unconditioned way.  In the present case, the removal of the relevant conditions would and could have had no effect on the description.
42. Even if the reasoning of Finney and Arrowcroft applies to the removal of conditions, there is in the present case nothing in the description that is inconsistent with development permitted by the Order. If the section 73 application were allowed, the way in which the development would change is not because anything in the description would be changed but because the conditions denying the benefit of the Order would be removed.  Removing the conditions would not be giving with one hand and taking with the other in the sense indicated by Arrowcroft.  A decision-maker could rationally adhere to the existing description of permitted development while at the same time deciding to remove the conditions denying the benefit of the Order.  As Mr Harwood submitted, whether or not to do so was what the inspector was tasked with confronting.  Her function was to consider whether, as a matter of planning judgment, the conditions should be removed.
43. In the present case, the inspector asked herself whether the use of the site for “unrestricted residential uses” would be inconsistent with the description of development restricted to holiday accommodation. She concluded that the change from holiday to residential accommodation would not be consistent with the description.   In considering this question, she ought to have taken into consideration that what can be done with the use of the land may not be exhaustively written into the description but may arise by the operation of law.
44. By law (section 55(2)(f) of the Act and the relevant provisions of the Order), the operational part of the permission allowed a developer to use the land for residential purposes if he or she chose to do so. The only bar to using the land for residential purposes was the imposition of conditions denying the benefit of the Order.  The removal of that bar would as a matter of fact change the use of the land because the claimant proposes to build residential accommodation.  But the removal of the bar cannot possibly lead to any alteration of the operational part of the permission (the description) because the operational part of the permission would remain identical.
45. The inspector in effect treated the conditions as having changed the description, taking the view that the description allowed only restricted use (holiday accommodation) and that it precluded development permitted under the Order (which the inspector called “unrestricted use”). In my judgment, she has thereby curtailed the operation of the Order in a way which could not have been intended.”

The Court quashed the Inspector’s decision. The judgment is available here.

Richard Harwood KC appeared for Mr Reid, instructed by Simon Stanion and Jack Randall of Shakespeare Martineau.