Floor plan of a house or flat

Amendment of permitted development prior approval conditions

The recent case of Pressland v Hammersmith and Fulham LBC [2016] EWHC 1763 (Admin) (“the Pressland Case”) opens the door for any developers unhappy with the conditions imposed on any permitted development rights prior approval decision to apply for their variation or removal.

The Relevant Legislation

Section 73 of the Town and County Planning Act 1990 (“the TCPA”) confers a power on the Local Planning Authority (“LPA”) to grant a fresh permission for the development of land without complying with conditions previously imposed.

Part 3 of Schedule 2 to the General Permitted Development Order 2015 (“the GPDO”) gives deemed planning permission for certain types of development. In particular under classes M, N, O, P and Q a change of use from an office, a storage and distribution centre, an agricultural building, a betting office or certain sui generis uses to a dwelling is permitted development subject to the criteria set out in each class and conditional on the applicant making an application to the LPA for “prior approval” of certain matters.

The Facts of the Case

Mr Pressland applied to Hammersmith and Fulham LBC (the Council”) for prior approval for a change of use of a London office building to three flats under Class O of the GPDO. The Council granted prior approval subject to 14 conditions. 11 weeks later Mr Pressland applied under Section 73 of the TCPA 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. Furthermore, the Council 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.

Mr Pressland judicially reviewed this decision and the High Court ruled in his favour.

The Decision

The Court held that permissions were granted subject to conditions that could be imposed either when the permission, or any subsequent approval, was granted.  Conditions imposed on the grant of prior approval could, therefore, be the subject of an application under Section 73 to remove them.

Secondly, that the application of Section 73 was not limited to permissions expressly granted by the LPA. It matters not, how the permission was granted and accordingly deemed planning permission granted by way of a development order is “a previous planning permission” to which Section 73 applies.

Consequences

The effect of the Pressland Case means that the Council will now need to determine Mr Pressland’s application for the removal of the 8 conditions. In its determination, the Council will need to assess whether the conditions imposed 14 months ago still serve a useful planning purpose.If the Council concludes that the conditions remain necessary to make the change of use acceptable, it may refuse the application.  However, Mr Pressland will have the ability to lodge an appeal against any such refusal.   Accordingly the Court ruling will not necessarily result in the removal of the offending conditions relating to parking, flood risk assessment and site remediation etc

Before the Pressland Case, if a developer was unhappy with the conditions imposed at prior approval stage, they would need to appeal under Section 78 of the TCPA or submit a full planning application. The Pressland case provides an opportunity for the quicker and cheaper procedure available under Section 73 of the TCPA to have the conditions removed or varied as a means of possible recourse for tackling onerous prior approval conditions whilst leaving the decision regarding the principle of development in tact.