Mikael Armstrong v Secretary of State for Levelling-Up, Housing and Communities
| Jurisdiction | England & Wales |
| Judge | Mr James Strachan |
| Judgment Date | 27 January 2023 |
| Neutral Citation | [2023] EWHC 176 (Admin) |
| Docket Number | Case No: CO/1288/2022 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 176 (Admin)
James Strachan KC
(sitting as a Deputy Judge of the High Court)
Case No: CO/1288/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Mikael Armstrong (in person)
Ms Ruchi Parekh (instructed by Government Legal Department) for the First Defendant
Hearing date: 28 October 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on Friday 27 January 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Mr James Strachan KC (sitting as a Deputy Judge of the High Court):
Introduction
This is a claim under section 288 of the Town and Country Planning Act 1990 (“the TCPA 1990”) by which the Claimant challenges the lawfulness of a decision made by a Planning Inspector given by decision letter (“DL”) dated 4 April 2020 (Appeal Reference APP/D0840/W/21/3285697). The Inspector dismissed the Claimant's appeal against a decision by Cornwall Council (“the Council”) to refuse his application under section 73 of the TCPA 1990 to vary the plans for construction of a new dwelling under an extant planning permission at a location known as The Beach House, Finnygook Lane, Portwrinkle, PL11 3BP (“the Site”)
The main issue which arises from this claim is whether the Inspector lawfully concluded that the application would give rise to a fundamental variation to the permission such that the application fell outside the scope of s.73 of the TCPA 1990, in circumstances where the proposed variation of the condition would not give rise to any conflict with the description of the development in that permission. It raises a question as to the correct statutory interpretation of that provision.
The Claimant appeared in person. The Defendant was represented by Ms Ruchi Parekh of Counsel. Cornwall Council did not appear and was not represented at the hearing. I am very grateful to Mr Armstrong and Ms Parekh for the clarity of their helpful submissions.
Factual Background
The Planning Permission Originally Granted
By notice dated 26 July 2007 Caradon District Council granted full planning permission (reference No. 06/01798/FUL) for the construction of one dwelling on the Site. The permission was expressed in the following terms:
“The CARADON DISTRICT COUNCIL hereby give permission for the development specified in the plan(s) and application submitted by you on 16 th December 2006 namely:
Construction of one dwelling on land situate at (Grid Ref: 235989 53842) The Beach House, Finnygook Lane, Portwrinkle, Torpoint.”
That permission was granted subject to nine conditions. None of the conditions refers to any of the drawings or plans submitted with the application. The notice, however, included an “Informative” in the following terms:
“ Informative
For the avoidance of doubt the Drawing to which this decision refers are
Drawings Nos.05074/L 01–09, 12 and 13 and L.100B received on 15 December 2006 and Drawings Nos. 05074/L.10A & 11A received on 17 May 2007.”
The Informative appears inappositely worded, as the decision notice does not refer to a “Drawing” or “Drawings”, but rather makes reference (in the part already quoted above) to “plan(s)” that had been submitted with the application.
The Non-Material Amendment to the Planning Permission
On 1 st October 2020 Cornwall Council, the authority which had taken over the planning functions of Caradon District Council, issued a decision letter dated 1 st October 2020 dealing with an application from the Claimant dated 19 August 2020 under section 96A of the 1990 Act (reference number PA20/07129). The Claimant applied for a non-material amendment to “E2/06/01798FUL” by way of addition of a condition. The Council granted that application in the following terms:
“Cornwall Council hereby grants permission for the following non-material amendment:
The following condition is added to decision notice E2/06/01798/FUL.
10. The development hereby permitted shall be carried out in accordance with the plans listed below.
5074 L.100B received 15 December 2006
05074 L.01 received 15 December 2006
05074 L.02 received 15 December 2006
05074 L.03 received 15 December 2006
05074 L.04 received 15 December 2006
05074 L.05 received 15 December 2006
05074 L.06 received 15 December 2006
05074 L.07 received 15 December 2006
Reason: For the avoidance of doubt and in the interests of proper planning.”
This amendment had the effect of imposing an additional condition to the original permission. This condition incorporated some (but not all) of the drawings referenced in the Informative.
Condition 10 requires the development permitted under the planning permission as amended to be carried out in accordance with the 8 plans identified. Condition 10 is silent as to the effect of the other drawings referred to in the Informative (ie drawings 05074 L.08, 09, 10A, 11A and 12 and 13).
Copies of the 8 drawings referred to in Condition 10 were provided in the Claimant's claim bundle. They variously show the location of the Site and the new dwelling proposed. The dwelling is shown as of irregular shape and in a modern architectural style. The other 6 drawings referred to in the “Informative” were not provided to the Court by either party.
The Claimant's S.73 Application
On 18 December 2020 the Council received a further application from the Claimant (reference number PA20/11367). It was made under section 73 of the 1990 Act. It sought non-compliance with Condition 10, expressed in the following terms:
“Construction of one dwelling without compliance of Condition 10 of PA20/07129 dated 1 st October 2020 Non material amendment to E2/06/01798/FUL to add condition to decision notice to construct the dwelling without compliance with Condition 10.”
Drawings were submitted in respect of that application. The subsequent decision notice from the Council identifies them and their date of submission as follows:
“Existing FLPC-SUR-02-C received 28/01/21
Proposed FLPC-LAY-03-B received 18/12/20
Proposed FLPC-LAY-10-C received 27/01/21
Proposed FLPC-LAY-11-C received 27/01/21
Proposed FLPC-LAY-11-C With previous elevation received 27/01/21
Proposed FLPC-LAY-12-C received 27/01/21
Proposed FLPC-LAY-13-C received 27/01/21
Proposed FLPC-LAY-04-C received 27/01/21
Proposed FLPC-LAY-05-C received 27/01/21
Proposed FLPC-LAY-05-C With previous elevation received 27/01/21
Proposed FLPC-LAY-06-C received 27/01/21
Site/location Plan L100 received 18/12/20”.
As recorded by the Inspector at DL2, the application sought to substitute these drawings into Condition 10. The drawings are included in the Claimant's claim bundle. They variously show the location of the Site and the new dwelling, but the latter is proposed in a different form and style. The proposed building is of more regular form, with an overhanging dual-pitched roof and detailing in what the Council described as of “alpine lodge style”.
The application was accompanied by a “Supporting Statement” from the Claimant. In it the Claimant stated that implementation of the 2007 planning permission had commenced within the time required and that this had been confirmed by a lawful development certificate issued on 13 April 2012 under reference number PA12/00133. This lawful development certificate has not been provided in the Claim Bundle. However, no dispute arises about the Claimant's summary of its effect.
The Claimant's Supporting Statement went on to explain his desire to change the design of the dwelling to a modern beam and post timber-framed house, but with a similar footprint to the originally approved design. He stated that the proposed new design incorporated “design cues” from an original “Swiss Chalet” style house that had once occupied the Site. A picture of that former house on the Site was provided. It shows a building that could be described as of an “alpine lodge style”, with an overhanging, dual, shallow pitched roof. The Supporting Statement contended that the Claimant's proposed design was simpler and more elegant than the more irregular modern building and that it would enable the use of more modern methods of construction to allow the building to be constructed speedily and in a more sustainable manner.
The Council refused the application by decision notice dated 4 May 2021. The single reason for refusal given was as follows:
“The proposed development seeks to change the design of the dwelling approved via, E2/06/01798/FUL, from an irregularly-shaped boldly modernist dwelling to a dual-pitched alpine lodge style dwelling. The application site occupies a highly prominent and sensitive coastal plot. The proposed revised design completely alters the nature of the development and would result in a development that would differ materially from the approved permission. As a result this proposal goes beyond the scope of Section 73 of the Town and Country Planning Act 1990 and is contrary to guidance within the National Planning Practice Guidance, specifically paragraph 001 Reference ID: 17a-001-20140306.”
The Claimant appealed against the Council's decision under s.78 of the TCPA 1990. In his Appeal Statement the Claimant argued (amongst other things) that:
a. although an application under section 73 of the 1990 Act is sometimes referred to as an application to make a “minor material amendment”, the terms of section 73 of the 1990 Act are not limited in that way and place no restriction on the magnitude of the changes that can be sought;
b. reference had been made by the Courts in the consideration of section 73 of the 1990 Act to not permitting amendments which amount to a fundamental alteration to the terms of a...
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