The Queen (on the Application of Fulford Parish Council) v City of York Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice Floyd,Lord Justice Peter Jackson |
| Judgment Date | 30 July 2019 |
| Neutral Citation | [2019] EWCA Civ 1359 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2019/0254 |
| Date | 30 July 2019 |
[2019] EWCA Civ 1359
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
PLANNING COURT
Mrs Justice Andrews DBE
CO47092018
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lewison
Lord Justice Floyd
and
Lord Justice Peter Jackson
Case No: C1/2019/0254
and
Mr Killian Garvey (instructed by Shoosmiths LLP) for the Appellant
Mr Jonathan Easton (instructed by City of York Legal Services) for the Respondent
Mr Giles Cannock QC (instructed by Walker Morris LLP) for the Interested Party
Hearing date: 16 th July 2019
Approved Judgment
The issue on this appeal is whether the statutory power conferred by section 96A of the Town and Country Planning Act 1990 to make non-material changes to a planning permission includes power to make non-material changes to conditional approvals of reserved matters. In a reasoned order refusing permission to apply for judicial review, Andrews J held that it did. With the permission of Lindblom LJ, the Fulford Parish Council appeals.
Section 96A provides:
“(1) A local planning authority in England may make a change to any planning permission, or any permission in principle (granted following an application to the authority), relating to land in their area if they are satisfied that the change is not material.
(2) In deciding whether a change is material, a local planning authority must have regard to the effect of the change, together with any previous changes made under this section, on the planning permission or permission in principle as originally granted.
(3) The power conferred by subsection (1) includes power to make a change to a planning permission—
(a) to impose new conditions;
(b) to remove or alter existing conditions.
(4) The power conferred by subsection (1) may be exercised only on an application made by or on behalf of a person with an interest in the land to which the planning permission or permission in principle relates.”
Following a public inquiry and an inspector's report, on 9 May 2007 the Secretary of State granted outline permission for residential development of approximately 700 dwellings, the creation of public open space and community facilities, including local shops and associated works on land at Germany Beck, Fulford, York subject to a large number of conditions. Many of these conditions required matters to be subsequently approved by the local planning authority. These included a detailed scheme for a nature park, a scheme of archaeological work, noise mitigation measures, proposals for the disposal of foul and surface water, approval of highway design and so on.
The site in respect of which permission was granted was (or may have been) the site of the battle of Fulford, where in 1066 King Harald Hardrada and Earl Tostig defeated the northern earls Edwin and Morcar; before they in turn were defeated by King Harold at the battle of Stamford Bridge. One of the conditions attached to the grant of permission was the approval of an interpretative trail detailing the course of the battle.
The Fulford Parish Council is bitterly opposed to the scheme, and has mounted a number of unsuccessful challenges to it (including an unsuccessful attempt to register the site as a historic battlefield).
On 2 February 2012 the City of York Council (“York”), as local planning authority, received an application for approval of reserved matters relating to details of appearance, landscaping, layout and scale of 655 dwellings. It granted approval on 9 May 2013.
The grant of approval stated:
“9. No development shall take place until a detailed Bat Mitigation Strategy and Method Statement have been submitted to and approved in writing by the Local Planning Authority. All works shall be carried out in accordance with the approved details, unless otherwise approved in writing by the Local Planning Authority and shall be retained unless otherwise agreed in writing with the Local Planning Authority.”
It went on to specify what the plan should deal with. These included:
“A timetable for implementing the above measures and construction showing any phasing of work carried out to avoid sensitive times of the year.”
In April 2015 York approved a bat mitigation strategy. That strategy provided a timetable for implementing the various measures. One of the proposals involved the provision of bat “hop-overs.” A bat “hop-over” is a trellis, with vegetation planted round it, to encourage bats to cross the road at a safe height. On 15 October 2018 York approved a further application described as:
“Non-material amendment to permitted application 12/00384/REMM to alter approved plans and to amend approved bat mitigation strategy required under condition 9.”
The amendments were changes to the approved house types and layouts of two of the phases of the scheme; and changes to the bat mitigation strategy. The amendment to the bat mitigation strategy involved a change in the timing of the provision of one of the bat hop-overs. The other one was already in place. By the time of that decision, the planning permission had been implemented, in the sense that the overall scheme of development had begun.
The Parish Council contends that section 96A did not empower York to make that decision. The statutory power is limited to making non-material amendments to a “planning permission”; and an approval of reserved matters is not a “planning permission”.
It is not easy to see where this argument leads. As the judge correctly said, the reserved matters approval specifically contemplated that the local planning authority might agree in writing deviations from the approved bat mitigation strategy. An agreement in writing permitting such an alteration would not change the condition itself. It would be implementing it. I will return to this point later.
The argument for the Parish Council, ably presented by Mr Garvey, is that the legislative code maintains a clear distinction between a “planning permission” on the one hand, and an “approval” on the other.
The planning permission granted by the Secretary of State was an outline planning permission. That species of permission is defined by section 92 of the Act:
“In this section and section 91 “outline planning permission” means planning permission granted, in accordance with the provisions of a development order, with the reservation for subsequent approval by the local planning authority, the Welsh Ministers or the Secretary of State of matters not particularised in the application (“reserved matters”).”
It can thus be seen, the argument runs, that there is a distinction between the planning permission on the one hand, and subsequent approval of reserved matters on the other. This distinction is maintained elsewhere in the Act. Section 62A enables certain applications (called “relevant applications”) to be made directly to the Secretary of State. Section 62A (2) provides:
“In this section “relevant application” means—
(a) an application for planning permission, or permission in principle, for the development of land in England, or
(b) an application for approval of a matter that, as defined by section 92, is a reserved matter in the case of an outline planning permission for the development of land in England,”
Once again, Mr Garvey points out, an application for planning permission is dealt with separately from an application for approval of reserved matters. Section 78 provides:
“(1) Where a local planning authority—
(a) refuse an application for planning permission or grant it subject to conditions;
(aa) refuse an application for permission in principle;
(b) refuse an application for any consent, agreement or approval of that authority required by a condition imposed on a grant of planning permission or grant it subject to conditions; or
(c) refuse an application for any approval of that authority required under a development order, a local development order, a Mayoral development order or a neighbourhood development order or grant it subject to conditions, the applicant may by notice appeal to the Secretary of State.”
Planning permission is dealt with under paragraph (a), whereas approval required by a condition is dealt with under paragraph (b). The same distinction can be seen in section 73 (5), and section 93 (2) and (3). The same distinction between a planning permission and a grant of approval of reserved matters is carried through into the Town and Country Planning (Development Management Procedure) Order 2015.
Mr Garvey also pointed to section 70. Section 70 (1) empowers a local planning authority to grant planning permission either unconditionally or subject to conditions. Section 70 (1A) empowers a local planning authority to grant or refuse permission in principle. There is no power to grant conditional permission in principle. Section 70 (2ZZB) applies to the grant of permission in principle. It provides:
“An application for technical details consent is an application for planning permission that—
(a) relates to land in respect of which permission in principle is in force,
(b) proposes development all of which falls within the terms of the permission in principle, and
(c) particularises all matters necessary to enable planning permission to be granted without any reservations of the kind referred to in section 92”
Mr Garvey made something of the fact that section 70 (2ZZB) provides in terms that an application for technical details consent is an application for planning permission. By contrast, there is nothing in the Act that says that an application for the approval of reserved matters is an application for planning permission. I do...
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