Lawson Builders Ltd & Ors v Secretary of State for Communities and Local Government & Anor [2015] EWCA Civ 122

Case No C1/2013/3479/QBACF

[2015] EWCA Civ 122

IN THE COURT OF APPEAL (CIVIL DIVISION)

Venue ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION ADMINISTRATIVE COURT (sitting at Leeds)

Mr Justice Supperstone (CO/12544/2012)

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Wednesday 25 th February 2015

Before

LORD JUSTICE PITCHFORD

LORD JUSTICE DAVIS

LORD JUSTICE LEWISON

Between

LAWSON BUILDERS LIMITEDAppellants

PAUL LAWSONAppellant

JENNIFER LAWSONAppellant

SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTRespondents

WAKEFIELD METROPOLITAN DISTRICT COUNCILRespondent

(Transcript of the Handed Down Judgment of

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Mr Peter Goatley (instructed by Messrs Lawsons Solicitors) for Appellants

Mr Gwion Lewis (instructed by The Treasury Solicitor) for First Respondent

Mr John Hunter (instructed by Wakefield MDC Legal Department) for Second Respondent

Hearing Hearing dates: 12 February 2015

Judgment

The appeal

[1]This is an appeal from the judgment of Supperstone J handed down on 7 November 2013 following the hearing of the appellants’ application pursuant to section 288 of the Town and Country Planning Act 1990 (“TCPA” or “the Act”). The appellants challenged the decision of Mr B. S. Rogers, a planning inspector, notified in a letter of 15 October 2012 in which he dismissed the first appellant’s appeal from a decision of Wakefield Metropolitan District Council (“Wakefield”), the second respondent. Wakefield had granted the first appellant’s applications for certificates of lawful development in respect of numbers 15 and 17 Bracken Hill, Ackworth, Pontefract, West Yorkshire, but only on the basis that the development was lawful in consequence of the grant of planning permission on 7 September 2010.

[2]The appellants take issue with the inspector’s conclusion, in agreement with Wakefield, that the decision of Mr Peter Eggleton, planning inspector, notified by letter of 7 September 2010, constituted the grant of retrospective planning permission for the dwellings under sections 73A and 75(3) TCPA, thus rendering the development of both dwellings and the occupation of number 15 lawful, and the conditions attached to the permission enforceable. The appellants argue that their successful appeal to Mr Eggleton in 2010 was against the refusal of their application made to Wakefield pursuant to section 73 TCPA for the variation of planning conditions. It was not an application for, nor was it an award of, retrospective planning permission and could not be construed as though it was. The appeal raises the wider question whether there is an interaction between sections 73 and 73A TCPA such that permits an inspector considering an appeal against an application made under section 73 to make an award using the power available to him under section 73A TCPA.

The planning background

[3]The first appellant, of which the second appellant is a director, built the dwelling houses at 15 and 17 Bracken Hill. The second and third appellants own the dwelling at number 15. The first appellant is the owner of the dwelling at number 17. The land was acquired from Mr and Mrs Stafford with the benefit of planning permission granted on 8 October 2004 (“the 2004 permission”) for the development of two dwelling houses subject to conditions. Condition 1 of the 2004 permission was that the development should commence within five years. The first appellant commenced construction of both dwellings in 2006. Number 15 was completed and sold to the second and third appellants who have lived there since 9 November 2007. Substantial completion of number 17 took place in January 2008 and full completion on 14 February 2008 but the house remains unoccupied.

[4]Conditions 10 - 13 of the 2004 permission were:

“10: The development shall not be brought into use until all footway/verge crossings have been completed. 11: The development shall not be brought into use until all areas indicated to be used for pedestrians and vehicles in the approved plan have been laid out with a hardened, sealed and drained surface. 12. Development shall not commence until a scheme (including construction details) for the following on site works have been submitted to and approved in writing by the Local Planning Authority. The construction (to an adoptable standard) of the carriageway widening to 5.0 m, the provision of a 2 m wide footway along the site frontage and the provision of turning as shown on the approved plans. The development shall not be brought into use until the above works have been carried out in accordance with the approved details and, unless otherwise approved in writing by the Local Planning Authority, the works have been vested [in] the Highways Authority. 13. The development shall not be occupied until 2.0 m x 2.0 m vehicle/pedestrian intervisibility splays have been provided on both sides of the access/drive such that there is no obstruction to visibility greater than 600 m above the level of the adjacent footway. Such splays shall thereafter be retained.”

[5]The housing development was commenced and completed in breach of condition 12 and number 15 was occupied in breach of conditions 10 – 13. On 9 April 2009 Wakefield wrote to the first appellant requesting compliance with condition 12. They advised that a “new planning application” could be submitted to obtain a variation or removal of the 2004 conditions but, Wakefield warned, it was unlikely that the Development Control department would support it. Since substantial completion of the development had taken place in January 2008, by section 171B TCPA enforcement proceedings could have been taken against the appellants at any time up to about 31 December 2011. However, the first appellant decided to make a further application for planning permission with variation of the conditions attached.

Planning appeal decision 7 September 2010

[6]On 9 July 2009 the first appellant made an application to Wakefield on a form provided by Wakefield entitled “Application for removal or variation of a condition following grant of planning permission”. Mrs T Lawson, on behalf of the first appellant, stated in the form that the application concerned:

“Permission granted on 8 October 2004 for a residential development of two dwellings on the site known as 15-17 Bracken Hill Ackworth”

. The application “related to” conditions 10 – 13 of the 2004 permission. She declared that the development had started in 2006 but had not been completed. (In reality it had been completed although the carriageway works had not.) The first appellant sought removal of the requirement from condition 12 for the provision of a turning head and a variation of condition 12 to require a footway one metre, rather than two metres, in width. A new plan was submitted in accordance with whose details the first appellant sought a variation of the requirements in condition 11. There was no explicit reference to section 73 or section 73A TCPA either in the application or in the pro-forma.

[7]On 5 November 2009 Wakefield refused the application and the first appellant, again by Mrs Lawson, appealed against their decision. Mr Eggleton, the planning inspector, considered written submissions and issued his decision letter on 7 September 2010 (“the 2010 permission”). In it he recorded that he had heard the appeal under section 78 TCPA against a refusal of planning permission sought under section 73 TCPA for development without complying with conditions. The inspector’s “Decision” at paragraph 1 of his decision letter was as follows:

“ I allow the appeal in part and grant planning permission for two dwellings at 15 and 17 Bracken Hill in accordance with the application...dated 9 July 2009 without compliance with conditions 10, 11, 12, and 13 previously imposed on planning permission Ref 04/99/63308/A dated 8 October 2004, but subject to the other conditions imposed therein, so far as the same are still subsisting and capable of taking effect and subject to the following new conditions: (12) Within 1 month of this decision, a scheme...for the carriageway widening, the footway/verge crossings, the 1 metre wide footway and the turning facility...shall be submitted to and approved in writing by the planning authority. The works shall be carried out in accordance with the approved details and shall be completed within three months of the date of this decision... (13) Within 3 months of this decision...vehicle/pedestrian intervisibility displays shall be provided on both sides of the access/drive...”

[8]In his reasons the inspector noted that (contrary to the assertion made in the application) the dwellings had already been completed and one of them was occupied. He pointed out that the access and turning conditions required works to be completed prior to occupation “which cannot now be achieved” (paragraph 3). The inspector noted that Bracken Hill was a narrow road with “pinch points” that served a number of properties and emerged at a junction with the A638. There were inadequate footpaths and turning spaces for the traffic that the road was likely to receive (paragraphs 4 – 7). Having considered the rival proposals made by the appellant and Wakefield as to the provision of carriageway works the inspector concluded at paragraph 12:

“12. Overall, I consider that even if the other turning heads were to be completed, this proposal should include a further turning facility given the unsatisfactory nature of this road. I am satisfied that subject to the inclusion of a condition similar to number 13, regarding pedestrian and vehicle intervisibility, a one-metre footpath would provide sufficient refuge for pedestrians crossing or using the road. I consider that without these facilities the proposal would be harmful to road safety and would therefore be contrary to Policy D14 of the Wakefield Metropolitan District Council Local Development Framework as this seeks the safe and free flow of traffic.”

[9]The inspector said (at paragraph 14) that he had “allowed the appeal but altered the conditions to reflect the above and also to take account of the fact that one of the dwellings is already occupied” and (at paragraph 15) that “As occupation has commenced it is essential that the scheme be submitted and completed in a short period of time as the harm from additional traffic is already occurring”. At paragraph 16 the inspector explained that he had “imposed a requirement that the scheme be submitted within 1 month and that it be completed within three months” because he considered “this to be reasonable given that the details represent a very similar proposal to the approved plan, other than the width of the pavement, and these details should have been submitted prior to the development commencing”. The inspector concluded that the 2004 conditions 10 and 11 were no longer required because they were incorporated in the scheme to be submitted under 2010 condition 12.

[10]On 5 January 2011, three months out of time, the appellants submitted its proposed scheme under 2010 condition 12. The submission was expressed to be “without prejudice to any rights and/or actions that the company or others may have and those rights and/or actions are reserved entirely”. On 10 January 2011 Wakefield indicated its acceptance of the submission for the purpose of new condition 12.

[11]No carriageway works were undertaken in compliance with the 2010 permission and the approved scheme. On 27 May 2011 Wakefield served a Breach of Condition Notice (“BCN”) identifying the first appellant’s failure to comply with the requirement within three months of the inspector’s decision to carry out the carriageway works in accordance with new condition 12. The first appellant again took no action and on 3 December 2012 was convicted at Wakefield Magistrates Court of an offence contrary to section 187A(9) TCPA of failing to comply with the BCN. The first appellant’s appeal against conviction by way of case stated was considered by Supperstone J at the same time as the hearing of the section 288 TCPA application and dismissed.

Lawful development certificates 10 May 2012

[12]In the meantime, on 24 February 2012 the second and third appellants, in their capacity as owners and occupiers of 15 Bracken Hill and, the second appellant as a director of first appellant, the owner of 17 Bracken Hill, applied to Wakefield under section 191 TCPA for certificates of lawfulness (Lawful Development Certificates or “LDC”) in respect of both properties. The case advanced by planning consultants, Wilbraham Associates, on their behalf, was that the development had been completed in breach of the conditions attached to the 2004 planning permission. Section 171B(1) TCPA provides that no enforcement action may be taken for breach of planning control after the expiration of four years from the date on which the operations were substantially completed. Subsection (2) provides that where the breach consists in a change of use of a building to a single dwelling no enforcement action may be taken after the expiration of four years commencing with the date of breach. By section 191(2) TCPA, uses and operations are lawful for the purpose of the section if no enforcement action may be taken by reason of the expiration of the relevant limitation period. It was submitted that each property was entitled to an LDC because the four year limitation period had expired.

[13]Wakefield replied in letters dated 10 May 2012, granting LDCs but not on the basis advanced. Wakefield asserted that the inspector’s decision of 7 September 2010 constituted a fresh grant of planning permission whose conditions could be enforced. In their material parts Wakefield’s written reasons were identical:

“1. The Council is satisfied that the use of the building as a dwelling (Class C3) without compliance with conditions on permission Ref. 04/99/63308/A is lawful by virtue of having been authorised as a result of permission Ref. 09/1307/FUL granted on appeal on 7th September 2010 and the operation of section 75 of the 1990 Act. 2. However, for the avoidance of any doubt, the Council is not satisfied that any non-compliance with conditions on permission Ref. 09/1307/FUL granted on appeal on 7th September 2010 is or would be lawful. Such non-compliance remains capable of being enforced against. 3. ...”

[14]In relation to both properties Wakefield gave the description and location of the property certified as follows:

“Lawful development certificate for an existing use of [15/17] Bracken Hill as a single dwelling without complying with the conditions of [the 2004 permission]”

. However, in the case of number 15 the following words were added:

“but subject to compliance with the conditions on [the 2010 permission] granted on appeal on 7 September 2010”

Planning appeal decision 15 October 2012

[15]The appellants appealed against Wakefield’s decisions under section 195 TCPA. Mr Rogers, the inspector, declined to consider the appeal in relation to 17 Bracken Hill because there was no appeal available against reasons for approval. However, the addition of words to the grant in respect of number 15 constituted a partial refusal within the meaning of section 195(4) TCPA and the inspector proceeded to consider the appeal in respect of number 15 on its merits.

[16]Mr Rogers noted (at paragraph 7 of his decision letter) the common ground between the parties that “the 2004 permission was not lawfully implemented because of the failure to comply with a number of conditions precedent”. Furthermore, Wakefield accepted that no enforcement action could be taken against “the building operations” because “they were substantially complete more than four years ago”. The first appellant argued that the 2010 permission was never implemented. The dwellings had been completed by the end of February 2008 and no work was done after that date. The first appellant simply elected to take no action, with the consequence that Wakefield was left with a right under section 171B(1) to take enforcement action that had become time-expired for the purpose of section 191(2) TCPA.

[17]However, the inspector accepted the argument for Wakefield that while the application made in July 2009 for removal and variation of conditions in the 2004 permission was made under section 73 TCPA the development had already (and in breach of planning control) been completed. What the first appellant, in reality, had been seeking was a grant of retrospective planning permission under section 73A TCPA. There was no basis on which Mr Eggleton could have imposed new conditions precedent to the development, so he recognised the obvious by granting retrospective permission for the dwellings, subject to a time limit for compliance with the substituted conditions (paragraph 9). The appellant had not challenged Mr Eggleton’s decision but had submitted, late, a scheme to Wakefield for approval. To that extent the first appellant appeared to have relied on the permission (paragraph 10). In the inspector’s view Wakefield could not have taken enforcement action against the buildings or their use during “the relevant period” (i.e. from 7 September 2010 to 31 December 2011) because the first appellant now had retrospective permission. He concluded on this issue:

“11...It would make nonsense of the legislation if the appellant could shelter under the protection of a planning permission without being bound by any of the conditions to which it is subject. I conclude that the 2010 permission was implemented and that the Council’s decision to modify the grant of the LDC to include reference to that wording was well-founded.”

The statutory provisions

[18]By section 70 TCPA the local planning authority may grant planning permission unconditionally or subject to conditions. Section 75(3) provides that if no purpose is specified in a planning consent for the construction of a building it shall be taken to include a purpose for which the building was designed. By section 79(1) a planning inspector on appeal enjoys the same powers as the local authority would have had. Sections 73 and 73A provide as follows:

“73. Determination of applications to develop land without compliance with conditions previously attached (1) This section applies, subject to sub-section (4), to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted. (2) On such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted, and— (a) if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly, and (b) if they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application. (3) Special provision may be made with respect to such applications— (a) by regulations under section 62 as regards the form and content of the application, and (b) by a development order as regards the procedure to be followed in connection with the application. (4) This section does not apply if the previous planning permission was granted subject to a condition as to the time within which the development to which it related was to be begun and that time has expired without the development having being begun. (5) Planning permission must not be granted under this section to the extent that it has effect to change a condition subject to which a previous planning permission was granted by extending the time within which— (a) a development must be started; (b) an application for approval of reserved matters (within the meaning of section 92) must be made. 73A. Planning permission for development already carried out (1) On an application made to a local planning authority, the planning permission which may be granted includes planning permission for development carried out before the date of the application. (2) Sub-section (1) applies to development carried out— (a) without planning permission; (b) in accordance with planning permission granted for a limited period; or (c) without complying with some condition subject to which planning permission was granted. (3) Planning permission for such development may be granted so as to have effect from— (a) the date on which the development was carried out; or (b) if it was carried out in accordance with planning permission granted for a limited period, the end of that period.”

Section 73A was an early amendment to TCPA made by the Planning and Compensation Act 1991 with effect from 2 January 1992. Section 73A is in similar but not identical terms to the former section 63 TCPA that was at the same time repealed. Parliament plainly considered that the replaced provisions should live next to section 73 TCPA. (1) This section applies, subject to sub-section (4), to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted. (2) On such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted, and— (a) if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly, and (b) if they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application. (3) Special provision may be made with respect to such applications— (a) by regulations under section 62 as regards the form and content of the application, and (b) by a development order as regards the procedure to be followed in connection with the application. (4) This section does not apply if the previous planning permission was granted subject to a condition as to the time within which the development to which it related was to be begun and that time has expired without the development having being begun. (5) Planning permission must not be granted under this section to the extent that it has effect to change a condition subject to which a previous planning permission was granted by extending the time within which— (a) a development must be started; (b) an application for approval of reserved matters (within the meaning of section 92) must be made. (1) On an application made to a local planning authority, the planning permission which may be granted includes planning permission for development carried out before the date of the application. (2) Sub-section (1) applies to development carried out— (a) without planning permission; (b) in accordance with planning permission granted for a limited period; or (c) without complying with some condition subject to which planning permission was granted. (3) Planning permission for such development may be granted so as to have effect from— (a) the date on which the development was carried out; or (b) if it was carried out in accordance with planning permission granted for a limited period, the end of that period.”

The appellants’ grounds

[17]Three grounds that were unsuccessfully advanced before Supperstone J are renewed before this court:(1) Mr Rogers concluded erroneously that either the 2004 or the 2010 permission had been implemented.

(2) It was not open to Mr Rogers to “re-classify” the 2010 permission as retrospective planning permission granted under section 73A TCPA. No such permission had been sought by the appellants or granted by Mr Eggleton. The application made was for the removal or variation of conditions attached to the 2004 permission. Had the first appellant known in 2010 that the inspector was going to grant retrospective planning permission it could have withdrawn its appeal. Because no-one had suggested that the 2010 decision amounted to more than a variation of conditions the appellants had been put in a position that they never intended.

(3) Mr Rogers was wrong to find that the 2010 permission provided consent for the use for which the dwellings were designed so as to engage section 75(3) TCPA.

[18]There is, submitted Mr Goatley, a difference between material factors for consideration under section 73 and section 73A respectively. Section 73(2) expressly confines the decision-maker’s assessment to the conditions imposed. However, an application for retrospective planning permission involves a wider consideration of planning matters. It is a conventional application for planning permission save to the extent that the development has already commenced (R (Wilkinson) v Rossendale Borough Council

[2002] EWHC 1204

at paragraphs 49 – 54). Mr Goatley recognised that in practice planning inspectors frequently do exercise their powers under section 73A when considering an appeal not explicitly based upon it. However, he argued that Mr Eggleton had made no attempt to engage with any issue beyond the need for carriageway works. This strongly suggests that he was proceeding only under section 73 TCPA.

[19]Mr Goatley submitted that what the first appellant sought was a grant of planning permission with such variation of the original conditions as the inspector thought fit. It was no longer open to the first appellant to implement the 2004 permission but it could choose whether to implement the 2010 permission. If it chose not to implement the 2010 permission that permission would simply lapse. The effect of Mr Rogers’ error of law is to produce new rather than substituted conditions, thus extending the period of time during which enforcement action can be taken.

Discussion

[20]I intend no discourtesy to the helpful submissions made on behalf of the respondents by proceeding immediately to an examination of the merits of the appellants’ arguments. In my opinion the three grounds advanced are interlinked. As to the first, as the judge pointed out, at paragraph 7 of his decision letter Mr Rogers recorded the common ground between the parties that the 2004 permission was never lawfully implemented because the development was completed without compliance with its pre-conditions. That was an agreement repeated in oral argument on all sides. I agree with the judge that Mr Rogers nowhere made a finding that the 2004 permission had been lawfully implemented. I did not understand Mr Goatley to submit the contrary in his oral submissions. The central issue is whether the appellants could simply ignore the 2010 permission if they chose. In my opinion, they plainly could not, first, because the first appellant obtained what it had applied for in 2010 and, secondly, because, subject to challenge or further application, the 2010 permission was valid and took immediate effect.

[21]The appellants aver that the first appellant was, in its application of 9 July 2009, seeking the grant of a fresh planning permission with new conditions. Section 73(2) TCPA requires the local planning authority to grant planning permission either(a) unconditionally, or

(b) subject to different conditions, or

(c) to refuse planning permission altogether if it decides that the same conditions should apply. Mr Eggleton was being asked by the first appellant to grant a new planning permission with different conditions.

[22]The appellants accept that the development in respect of which the first appellant was seeking planning permission had already been completed in breach of the 2004 permission. It follows that any fresh planning permission for the development granted by the local planning authority (or the inspector on appeal) conditionally or unconditionally had to be retrospective in its effect. New conditions could not be grafted on to the 2004 permission- that is not the way section 73 works. The terms of section 73(2) make it plain that upon considering the application, and subject to qualifications in subsections (4) and (5) that do not apply to the present case, the local planning authority must either grant a new permission with no conditions or grant a new permission with different conditions or refuse the application.

[23]In the present case, the first appellant was not seeking permission for a proposed development; it was seeking permission for a completed development. Secondly, the first appellant was seeking the variation of pre-conditions to the original development. Any conditions attached to the fresh permission could not be pre-conditions to the construction of a proposed development because the development had been completed and the existing breach was irremediable. If the conditions were to be varied in the terms sought they could only be conditions that took effect at the date of the grant of a retrospective planning permission or at some other time in the future specified in them. Despite the ingenuity of Mr Goatley’s submissions, in my view the court received no satisfactory response during exchanges to this interpretation of the application and the grant; neither was Mr Goatley able to explain the reason why Mr Eggleton should have imposed an outside time limit of three months for performance of the new conditions but no time limit at all for implementation of the permission unless it was because he was granting permission retrospectively. In my judgment, it was implicit in the application made on 9 July 2009 that if it was successful it would result in a grant of planning permission retrospectively and the imposition of new conditions for the carriageway works that would take effect on or after the date of grant.

[24]Contrary to Mr Goatley’s submissions, I can see no purpose in the application made by the first appellant in July 2009 to vary the conditions imposed by the 2004 permission in the terms sought unless it was to bring the development legitimately within planning control. The first appellant was already in breach and had been since work commenced in 2006. An application merely to change the specification of the carriageway works could not achieve any result of assistance to the first appellant because the carriageway works were a pre-condition to the development. What was done was done. The first appellant could only achieve what it wanted by a grant of planning permission retrospectively subject to revised conditions imposing current obligations for the completion of the carriageway works.

[25]There is no merit in the argument that the first appellant reasonably understood that it had a choice whether to implement the 2010 permission. I accept that, theoretically, section 73 enables an application to be made whether the development has not yet commenced, or is in progress, or has been completed. If the development has not yet commenced, a new grant of permission will take effect prospectively. If the development is partially completed the permission may take effect prospectively or, upon exercise of the section 73A power, both retrospectively and prospectively. However, if the development has been completed in breach of a pre-condition,(i) there remains no proposed development in respect of which any permission can be given and

(ii) since there is no proposed development, any conditions, as varied, could only be imposed as a current obligation. The power to make a grant of permission in these circumstances is derived from section 73A and section 70 TCPA (see below, paragraph 27). Since the development had been completed it was, as Mr Rogers found at paragraph 9 of his decision letter, an automatic consequence of the successful application for permission that the permission had been implemented.

[26]Furthermore, the terms of Mr Eggleton’s decision make it clear that he was imposing terms that had immediate practical application. He pointed out that the original purpose of the conditions to prevent building and occupation before the conditions were fulfilled could no longer be achieved. He noted that the development was already causing harm from additional traffic and “it is essential that the scheme be submitted and completed in a short time”. The first appellant could not reasonably have understood that compliance with conditions 12 and 13 was optional. The first appellant’s subsequent attempt to qualify its submission of a new scheme in January 2011 so as to reserve its “rights and/or actions” was, in my view, misconceived. The rights and obligations under the planning permission just granted had already crystallised.

[27]Once it is understood that any grant of planning permission consequent upon this application had to be retrospective in its effect, it is clear that the power to make the grant was derived from section 73A TCPA. Section 73A(1) provides that on “an” application for planning permission, the permission granted may “include” permission in respect of development that has already been carried out. By subsection (2) retrospective permission may embrace development carried out(a) without planning permission, or

(b) subject to time-limited permission, or

(c) in breach of conditions imposed on a previous planning permission. Section 73A creates a general power to grant planning permission retrospectively. Here the development had taken place in breach of a pre-condition attached to a previous permission. I agree with the judge that there is no question of the inspector “re-classifying” the application made by the first appellant. It was implicit that if the appeal from the refusal to grant permission was to be successful the source of the power to grant permission came from section 73A. It was unnecessary for the inspector to spell out the source of his power to grant the permission sought provided that the power existed.

[28]I do not accept that any unfairness has resulted. On 9 April 2009 Wakefield’s Development Control department wrote requesting that the carriageway works be completed and warning that it probably would not agree to the removal or variation of the original conditions. At the date when the first appellant made its application to vary the conditions the first appellant was open to enforcement proceedings. It chose to appeal against Wakefield’s refusal to agree a variation. It need not have done so. If the first appellant had not appealed it would have remained liable to enforcement proceedings until about 31 December 2011. In my view it is clear that the first appellant chose to seek the inspector’s approval and, by that means, avoid consequences that, possibly, could have been draconian. Mr Eggleton was entitled to proceed on the footing, without further reference to the parties, that the first appellant was seeking to cure a flagrant breach of planning control by obtaining retrospective permission with less onerous conditions. Although Mr Eggleton made no specific reference to section 73A TCPA in his decision letter it is plain from its terms that he was granting retrospective approval for “two dwellings” that had already been constructed, subject to the varied conditions that created a current obligation. If the first appellant wished to challenge Mr Eggleton’s grant of planning permission the time to do so was 2010. In the absence of such a challenge it seems to me that Mr Rogers’ construction of the 2010 permission was inevitable.

[29]Mr Goatley argued that the absence in Mr Eggleton’s decision letter of any indication that he had considered the wider planning merits of the development and its compliance with the Local Plan is a strong indication that he confined his examination to the section 73(2) factors and was not intending to grant planning permission retrospectively under section 73A. He relies upon the decision of Sullivan J, as he then was, in R (Wilkinson) v Rossendale Borough Council

[2002] EWHC 1204 (Admin)

. I do not accept this argument because I consider that Mr Eggleton granted the only planning permission in practice available to him and that was retrospective permission. No-one at the time and no party in the current proceedings has sought to argue that the award was a nullity because it was made without jurisdiction. However, I shall confront the argument on its merits because Sullivan LJ was persuaded to grant permission to appeal on the strength of it.

[30]In Wilkinson the lessee of a residential property sought under section 73A TCPA retrospective planning permission for the use of his garage for repairing tarpaulins. That use had been continued by the lessee in breach of a condition attached to an existing permission confining its enjoyment to previous owners of the property. It was, of course, an application for a new planning permission and the applicant sought the removal of the existing condition to enable the use to continue whoever occupied the premises. There were objections from neighbours both as to the suitability of the residential premises for the use made of them and to the removal of the condition. At paragraph 54 of his judgment Sullivan J held that the local planning authority had got off on the wrong foot by failing to consider the planning merits of the continuation of use, only the merits of the condition confining use to named persons. Had the Council examined the planning merits of the application it would have engaged with the question whether the use of the premises was compatible with the Local Development Plan (paragraph 68). The judge had pointed out at paragraph 58 that the application concerned change of use and not the erection of a building. There was no reason to think that the condition confining use to an individual was unreasonable when it was imposed. However, he concluded at paragraph 82, the permission had been granted personally as a response to circumstances that the evidence showed had since changed. The application had been made under section 73A TCPA and the local planning authority was not constrained by the requirement in section 73 to consider only the merits of the condition. There had been no reason for the Council to direct itself that it was not concerned with the planning merits but only with the reasonableness of the condition, and it had erred in law in doing so. The decision was flawed and the appeal was allowed.

[31]I accept that an application for retrospective planning permission under section 73A may, and often will, require engagement with wider planning considerations than those raised by a reconsideration of conditions imposed upon an existing permission under section 73. However, it would be a mistake to assume that a section 73 examination of conditions will never involve the study of wider planning considerations. Although the planning merits of the development in general will not be under consideration, the conditions may have been imposed so as to ensure compliance with an important aspect of policy. The task of the planning authority and the planning inspector under section 73 is “only” to judge whether the conditions originally imposed should be adhered to or varied but that task may require, depending upon the purpose of the condition, a wide ranging enquiry. As to section 73A, it can be seen from the terms of section 73A(2) that there is scope for wider or narrower examination of the planning merits depending upon the nature and stage of the development and the circumstances of the application.

[32]In the present case neither Wakefield nor any objector was taking issue with the planning merits of the proposal to erect two dwelling houses. They had been constructed in an area in which further residential development had since been approved and had themselves been approved subject to the prior completion of the carriageway works. Wakefield was only concerned with the implementation of the carriageway works. The issues placed before the inspector concerned the policy requirements of highway access to the properties that had already been constructed: hence Mr Eggleton’s reference to Policy D14 of Wakefield’s Local Development Framework. I do not consider that on the present facts any wider consideration of the planning merits was required; nor does the absence of reference to them in Mr Eggleton’s decision letter provide any basis for concluding that he was not using his power under section 73A to grant permission.

[33]In his submissions in reply, Mr Goatley drew the court’s attention to the guidance to planning inspectors issued by the department in February 2009. His purpose, I think, was to draw support for his assertion that two planning permissions could sit side by side and the occupier could choose which, if either, to implement, and to demonstrate that the decision-maker’s task under section 73 may be different from that under section 73A.

[34]Paragraph 4 of the Introduction to the guidance draws attention to the fact that under both sections 73 and 73A TCPA a new permission is created “that stands alongside the original one”. Accordingly, except when in some section 73A cases a breach of condition cannot be undone, the appellant will be able to choose which, if either, is implemented. The point is repeated in paragraph 14. At paragraph 17 the guidance suggests that if an application purports to have been made under section 73 but it becomes clear that the condition had been breached before the application was made, then it should also be dealt with under section 73A(2)(c).

[35]It seems to me that the appellants can derive no assistance from this guidance. This is a case within the recognised exception: the breach of the 2004 planning permission could not be undone. There was no choice available to the first appellant as to which, if either, permission to implement. The first appellant could not implement the 2004 permission and had already ‘implemented’ the 2010 permission by virtue of the completion of the development before permission was granted. I have already responded to the argument that the statutory tasks are or may be different. In this case the central issue is whether Mr Eggleton used his section 73A power to grant retrospective planning permission and, for the reasons I have endeavoured to explain, he did so.

[36]In my judgment, as the guidance says, it is implicit in the terms of sections 73 and 73A TCPA, read together, that in an appropriate case a planning authority considering an application under section 73 for planning permission to proceed with a development without complying with conditions attached to an existing permission may grant, under section 73A, retrospective planning permission for a development already carried out, subject to conditions imposed under section 70. There may be some unusual circumstances that would require the inspector to forewarn the appellant that he was minded to act under section 73A but they do not arise in the present case for the reasons I have given at paragraph 28 above.

Conclusion

[37]I agree with the judge that Mr Rogers was fully justified in construing Mr Eggleton’s decision letter to mean that he was granting retrospective permission with new conditions notwithstanding the absence of any reference to section 73A or to an examination of the planning merits of the completed development. I would dismiss the appeal.

[38]I agree.

[39]I also agree.