“ E7 DITTON STRATEGIC RAIL FREIGHT PARK 1 A phased strategic intermodal rail freight park will be developed on land at Ditton, Widnes in accordance with an overall master plan to be approved as a Supplementary Planning Document. Within the defined park Sites 253, 255 and 256 are allocated for development. Development will be permitted provided it complies with all of the following (and in the case of Site 253 subject also to compliance with paragraph 2 below) a. It is for use by businesses that would utilise the railway for the transportation of freight, and uses offering support services to them b. ……… c. ……… d. ………… e. …………. 2 Development will not be permitted on (Site) 253……………..unless all the following also apply a. It is part of a comprehensive proposal for a strategic rail freight park at Ditton in accordance with an agreed phasing plan b. Development of the strategic intermodal rail freight park on the previously developed sites 255 and 256……….has already commenced in accordance with an agreed Phasing Plan set out in a Supplementary Planning Document. c. ……………………………………………. d. A warehouse development proposal comes forward of larger than 25,000 square metres floorspace and of a sufficient size or character that would be incapable of being accommodated within the remaining areas in the defined Park e. It is designed to be rail served, including the provision of dedicated rail sidings adjacent to it. f. The layout of development incorporates measures actively to discourage the direct movement of goods vehicles from the site to the local road network in the Halebank area. In order to achieve this aim a road system shall be provided to connect Sites 253, 255 and 256 where they are divided by public highways or railway lines.” a. It is for use by businesses that would utilise the railway for the transportation of freight, and uses offering support services to them b. ……… c. ……… d. ………… e. …………. a. It is part of a comprehensive proposal for a strategic rail freight park at Ditton in accordance with an agreed phasing plan b. Development of the strategic intermodal rail freight park on the previously developed sites 255 and 256……….has already commenced in accordance with an agreed Phasing Plan set out in a Supplementary Planning Document. c. ……………………………………………. d. A warehouse development proposal comes forward of larger than 25,000 square metres floorspace and of a sufficient size or character that would be incapable of being accommodated within the remaining areas in the defined Park e. It is designed to be rail served, including the provision of dedicated rail sidings adjacent to it. f. The layout of development incorporates measures actively to discourage the direct movement of goods vehicles from the site to the local road network in the Halebank area. In order to achieve this aim a road system shall be provided to connect Sites 253, 255 and 256 where they are divided by public highways or railway lines.”
“It was considered that the Policy context as a whole needed reviewing in terms of the aims and principles of the Policy,” and “ The lack of access via rail to the 3MG park.”
“ No part of the development shall be brought into use until a scheme of noise attenuation and mitigation has been implemented with details submitted to and agreed in writing by the Local Planning Authority. Unless the Local Planning Authority agree to any variation, such scheme shall be designed to ensure that noise emitted from the site shall be mitigated and attenuated in line with BS 4142 methodology and principles in relation to properties to the south west of the site on Halegate Road including (named properties)…………..Such a scheme as is agreed and implemented shall be so maintained.” (b) Condition 31; “ No part of the use hereby approved shall be commenced until a scheme of off-site works has been carried out and made available to provide vehicular access to and aggress from the site via the A 562/A 5300 ……..junction, unless otherwise agreed by the Local Planning Authority. That scheme shall be in accordance with earlier permissions (numbers given) unless otherwise agreed by the Local Planning Authority.” (c) Condition 32; “ No part of the building hereby approved shall be brought into use, or other such timings as may be agreed by the Local Planning Authority, until the dedicated rail siding has been constructed within the application site in accordance with the approved Plans P003 Rev A or such other scheme as is agreed in writing by the Local Planning Authority. The rail sidings shall thereafter be retained unless otherwise agreed with the Local Planning Authority.”
"... if the statute law covers the situation, it will be an impermissible exercise of the judicial function to go beyond the statutory provision by applying such principles merely because they may appear to achieve a fairer solution to the problem being considered. " 48. The House of Lords was there dealing with the statutory code contained in theTown and Country Planning Act 1971 . Since that time, as Sullivan J noted in the present case (para. 137), the code has become even more comprehensive. Of particular relevance for present purposes is the introduction bysection 49 of the Housing and Planning Act 1986 of what is now section 73 of the 1990 Act. That provides a statutory mechanism by which a person can, in effect, seek a variation in a condition on a planning permission or the discharge of such a condition. It does so by providing for an application: "for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted " (section 73(1)) 49. Thus it is the case that (to use the language of PioneerAggregates) "statute law covers the situation" when a developer wishes to vary or discharge one or more conditions on a permission. As Sullivan J commented, this, together with the power to appeal against a condition in the first place or to obtain retrospective permission under section 73A, builds in a considerable degree of flexibility to the statutory code (see paras 137 – 140 of his judgment). I would add that the reality is that developers of experience, such as the appellant, also generally seek to negotiate the form of conditions with the local planning authority before any permission is granted. 50. But the section 73 procedure has an additional importance. Because it operates by means of providing for an application to be made for "planning permission" without certain conditions previously imposed, it imports (as Mr Holgate accepts) the safeguards for third parties and the public generally which apply to applications for planning permission under the Act. Thus, although it is right that an application seeking approval under a condition does not attract the statutory provisions concerning publicity and consultation, an application under section 73 to vary or discharge such an existing condition does. Such an application has to be entered on the planning register, available to the public. Indeed, it can be called in by the Secretary of State for his own determination. The statutory procedure ensures that a condition requiring matters to be dealt with before development begins cannot be varied or discharged without an opportunity for the public to be informed and to object or make other representation. So the public is engaged in that statutory process. 51. In those circumstances, the scope for such variation or discharge to be achieved by some other non-statutory method, bypassing the statutory safeguards for the public, must be extremely limited. Such a change is not simply a matter for bilateral agreement between the developer and the local planning authority. The public is entitled to be involved. As Dyson J said in the first instance decision in R v Leicester City Council, ex parte Powergen United Kingdom plc[1999] 4 PLR 91 at 101 G - H: "... section 73 is the provision that parliament has enacted to deal with situations where a developer wishes to develop land without compliance with conditions previously attached to a planning permission. What is required in such circumstances is that the developer apply for planning permission. I do not accept that the provisions of section 73 can be side-stepped by persuading a local planning authority, still less an authorised officer, to vary or waive a condition under the guise of the exercise of a general management discretion in the implementation of planning permissions."
"It is, I think, clear from this brief summary that a determination is not simply a matter between the applicant and the planning authority in which they are free to agree on whatever procedure they please. It is also a matter which concerns the general public interest and which requires other planning authorities, the Secretary of State on behalf of the national interest and the public itself to be able to participate." 52. That is very much the nature of town and country planning law. Even more than many areas of public law which concern an individual and a public body, planning law is likely to have to reflect the fact that third parties and the public generally may have interests in any decision. I agree with what was said by Sullivan J in the present case at para 140: "... It is important at all times to remember the public nature of Town and Country Planning. It is not a matter for private agreement between developers and Local Planning Authorities."