“If all the recommendations and suggestions within the report [i.e. Biodiversity Management Plan Final Wychwood Biodiversity Aug 15] and as illustrated on the landscape master plan are fully implemented then as part of this development biodiversity enhancements can be secured. … If all the recommended enhancements and mitigation are the incorporated & implemented, the policy and guidance requirements of Policies in the West Oxfordshire Local Plan, the NPPF (including section 11) and the habitat NPPF regulations & NPPG are all met.”
“1.ORIGINAL/PREVOUSLY REPORTED CONSULTATION … 1.3 Cotswolds Conservation Board The Board has considered the amended new application but maintain their objection to this development on the basis it is considered to be beyond the settlement and harmful to the landscape/AONB. … 5. PLANNING ASSESSMENT … 5.29 Having regard to paragraph 115 of the NPPF it is considered that there would be undue harm to the landscape and scenic beauty of the AONB. If Members consider that the proposals are major development paragraph 116 of the NPPF requires that planning permission for major development in the AONB is refused except in exceptional circumstances and where it can be demonstrated that they are in the public interest. The test has three components which are assessed as follows: … 3) Any detrimental effect on the environment, the landscape and recreational opportunities, and the extent to which that could be moderated. … Officers acknowledge that some harm would arise in landscape terms, but this harm is in the context of the site being effectively contained by established development, landform and woodland. The harm can to a large extent be mitigated and moderated by the proposed design and effective landscaping. The residual harm will need to be considered against the benefits of the scheme to see whether 'exceptional circumstances' have been established such that the scheme is in the public interest despite the great weight given to the residual harm. This question is addressed in the conclusion.”
“The Development Manager [Mr Shaw] noted that the objections submitted by the Cotswolds Conservation Board had been available in full on the Council's website and had been received by Members from elsewhere. … Mr Haine [Councillor and Chairman of the Sub-Committee] noted that, whilst there was significant support for the application, there had also been a lot of local opposition. He was concerned that the grant of consent could set an unwelcome precedent for further development that would be harmful to the Area of Outstanding Natural Beauty, nearby listed buildings and the surrounding landscape. … Mr Beaney [Councillor] believed that the security of the buffer zone should be strengthened, perhaps by way of land ownership and, whilst recognising the need to construct the housing prior to the dementia care facility, wish to see greater certainty that the proposed dementia care unit would be delivered rather than a general care home. … Mr Cotterill [Councillor and Vice-Chairman] expressed his support for the application, suggesting that condition 12 should be strengthened to protect the integrity of the planting belt.… The Development Manager advised that concerns over materials, landscaping and noise amelioration measures could be addressed by way of conditions. It would also be possible to strengthen and enhance the buffer zone.”
“8. Before any works begin on sitea construction management plan [“CMP”] must be submitted for approval as per the recommendations in the submitted Phase 2: Great Crested Newts Report (Earth Ecology), Ecological Assessment Final & Biodiversity Management Plan Final (Wychwood Biodiversity Aug 15) as well as a ten year Ecological Management [“EcMP”] plan based on the Biodiversity Management Plan Final (August 15) which provides further detail to show who will be responsible for carrying out the proposed works including all monitoring work, details and the mechanisms to ensure the success of the proposed buffer zones and enhancements must be submitted for approval to the LPA. Once approved all the works must be carried out as per approved Construction Management Plan and the Ecological Management Plan and thereafter permanently maintained. REASON: To ensure that Amphibians, Bats, Birds and their Habitats as well as Priority habitats such as water courses, wetlands and ponds are protected in accordance with theConservation of Habitats and Species Regulations 2010 andWildlife and Countryside Act 1981 as amended, in line with the National Planning Policy Framework (in particular section 11), West Oxfordshire District Local Plan Policies and in order for the Local Planning Authority to comply with Part 3 of theNatural Environment and Rural Communities Act 2006 . 12. A scheme of hard and soft landscaping of the site shall be submitted to and approved in writing by the Local Planning Authority before above ground The italicised words were added to the wording of condition 12 set out in the Minutes: see paragraph 15 above. development commences. The scheme shall include the retention of any existing trees and shrubs and planting of additional trees and shrubs; proposed finished levels or contours; all ground surface treatments and materials; means of enclosure; car parking layouts; other vehicle and pedestrian access and circulation areas; minor artefacts and structure; retained historic landscape features and proposals for restoration, where relevant and shall be implemented as approved within 12 months of the commencement of the approved development or as otherwise agreed in writing by the Local Planning Authority and thereafter be maintained in accordance with the approved scheme. In the event of any of the trees or shrubs so planted dying or being seriously damaged or destroyed within 5 years of the completion of the development, a new tree or shrub of equivalent number and species, shall be planted as a replacement and thereafter properly maintained. REASON: To safeguard the character and landscape of the area. 13. No development (including site works and demolition) shall commence until all existing trees which are shown to be retained have been protected in accordance with a scheme which complies with BS 5837:2012: 'Trees in Relation to design, demolition and construction' has been submitted to, and approved in writing by, the Local Planning Authority. The approved measures shall be kept in place during the entire course of development. No work, including the excavation of service trenches, or the storage of any materials, or the lighting of bonfires shall be carried out within any tree protection area. REASON: To ensure the safeguard of features that contribute to the character and landscape of the area.”
“Condition 8: CMP The details submitted for the Construction Management Plan in respect of Ecology are considered sufficient to discharge the condition. Condition 12: Landscaping Whilst the requirement for the buffer around the edge of the site cannot be physically achieved in some locations due to the proximity of the dwellings to the boundary, the additional details (submitted 6/7/22) showing the amended red line are considered acceptable to discharge the condition. Condition 13: Trees in relation to design, demolition and construction The details as submitted are acceptable to discharge the condition.”
“The proposed amendments to the development seek alterations to the layout of the scheme and the provision of amended elevations. The layout changes are required to adequately address the changing levels on site whilst being able to provide level access through properties as far as possible. The layout changes have also been proposed to provide more appropriate amenity space for dwellings and to ensure that the 5 metre ecology buffer required around the edge of the site can be provided with no encroachment from the dwellings.”
“the application for the discharge of the conditions was submitted by the applicant to make a lawful material start on site and keep the consent alive, but they have now submitted the s73 application to allow minor changes to the layout to provide the 5m buffer zone. I am advised by the applicant that they intend to implement the s73 permission, if granted. In that case, the Claimant's concern that the buffer zone cannot be provided would no longer be relevant.”
“… Having reviewed the application plans, we wish to raise an objection to this application due to the potential impact of the proposal on Ancient Woodland which we consider may not accord with Policy EH3 of the West Oxfordshire Local Plan. The proposed amendments when compared to the approved scheme relate mainly to the alignment of the spine road and changes to house types and orientation of units. However, the Board remains concerned with the proposed proximity of development to an area of registered Ancient Woodland (ID 44876 Rushy Bank) with only a 5m buffer being proposed. The comparison plan (dwg. no. SL-041 rev. A) shows that a number of units would be located closer to the 5m buffer zone in the revised scheme than in the consented scheme and this buffer zone also appears to fall within residential curtilages and over areas of flag paving in some places, for example to the rear of plots 15 and 22 as shown on the Landscape Masterplan. … Paragraph 8.9 of the Local Plan reflects Natural England Standing Advice on Ancient Woodland by stating that buffers of at least 15m additional planting of native trees should be provided between Ancient Woodland and development. We support this guidance. … Whilst we understand that some of the Ancient Woodland has recently been felled, we consider that the fact that the scheme has been permitted contrary to Natural England's advice is unsatisfactory and this proposed variation brings built development closer to the 5m buffer zone in some places. As such the proposed variations may increase the impact of the scheme on the Ancient Woodland over and above the current consent. … We strongly recommend that prior to the determination of this application, the Council should seek Natural England's advice on this specific issue given the potential conflict with the Standing Advice and, by extension, local and national planning policy and guidance.”
“PLANNING ASSESSMENT … Section 73 of the Town and Country Planning Act allows for applications for the variation of conditions attached to previously granted permissions. The regulations set out that when determining such applications it is only the question of the conditions attached to the approved consent which may be considered. As such, the principle of the original scheme cannot be re-considered under this application. The regulations set out that the Local Planning Authority can grant permission with conditions differing from the original permission, or it can refuse the application if it considers that the original conditions should apply. Therefore, when assessing this application, Officers will consider the impact on the siting, ecological buffer and land levels. … Fall back position The [Original Permission] is considered to be lawfully implemented following the discharge of pre commencement conditions and works commencing on site prior to January 2023. The matter of the fall-back position is a material consideration in the determination of future planning applications and the Local Planning Authority (LPA) is obliged to have regard to it. This principle has been considered by the courts on a number of occasions. The weight to be attached to the fall-back position as a material consideration will depend on the facts of each case. In R v Secretary of State for the Environment ex parte Ahern [1998] it was argued that it was necessary for the local planning authority to have regard to three tests: 1. Whether there is a fall-back use, that is to say whether there is a lawful ability to undertake such a use; 2. Whether there is a likelihood or real prospect of such a use occurring; (“the Court of Appeal case of Mansell [2017] has clarified that what is required is a real possibility”) and 3. If the answer to the second question is yes, a comparison should be made between the proposed development and the fall-back use. The court added that the requirement to have regard to a consideration imports on the decision maker a requirement to have before it sufficient material so that the consideration can be assessed. In fall-back cases, the question is therefore are the implications of the proposed development likely to be worse or broadly similar to the use which the land would have or might have been put if the proposed development were refused permission? In this case, the application proposes minor amendments to the position of the dwellings to enable the full extent of the ecological buffer around the site to be provided. This buffer could not be fully provided in accordance with the recommendations of the Ecological Management Plan approved as part of the 2015 application so the amendments proposed as part of the S73 would enable this to happen. It is considered that the 2015 application has, at this time, been lawfully implemented and, if the S73 planning application was refused, the applicant could continue to exercise their right to implement the 2015 permission (in line with the outcome of the Legal Challenge). Applying Ahern, therefore, the implications of the S73 would be at least broadly similar if not better than the development which already has permission and is capable of being implemented.”
“In my judgment, condition 8, as worded, permits no room for officers subsequently to vary the width of the buffer zone on an application to discharge. It could have been worded in that way, but it was not. What it requires was is that the works and maintenance are to be carried out as per the approved plans, which provided for a 5 meter buffer zone.”
“Both these parties accept that that development was commenced in reliance upon the discharge of conditions under challenge. If that discharge is quashed then it as [sic] least arguable that the [Original] permission has not been validly commenced by20 January 2023 and cannot now be lawfully commenced.”
“Given the express importance of the buffer zone (which was only one third of what policy required) and the protection measures, the decisions complained of must be quashed and resubmitted for determination in accordance with the foregoing meanings of the conditions sought to be discharged”
“73. — Determination of applications to develop land without compliance with conditions previously attached. (1) This section applies, subject to subsection (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 […] (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 been begun. (5) Planning permission must not be granted under this section for the development of land in England 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.”
“… it is only necessary to ask a single question: are the operations (in other situations the question would refer to the development) permitted by the planning permission read together with its conditions? The permission is controlled by and subject to the conditions. If the operations contravene the conditions they cannot be properly described as commencing the development authorised by the permission. If they do not comply with the permission they constitute a breach of planning control and for planning purposes will be unauthorised and thus unlawful. This is the principle which has now been clearly established by the authorities.”
“61. Condition 10 is a "condition precedent" in the sense that it requires something to be done before extraction is commenced, but it is not a "condition precedent" in the sense that it goes to the heart of the planning permission, so that failure to comply with it will mean that the entire development, even if completed and in existence for many years, or in the case of a minerals extraction having continued for 30 years, must be regarded as unlawful. 62. In my judgment, the principle argued for by the defendant applies only where a condition expressly prohibits any development before a particular requirement, such as the approval of plans, has been met. Condition 10 is not such a condition. If it had been breached some 34 years ago, the effect of that breach would have been to render any restoration in breach of condition, and therefore unlawful. Other activities permitted by the 1971 permission, such as extraction, would not have been rendered unlawful.”
“67. For the reasons set out above, I believe that the statutory purpose is better served by drawing a distinction between those cases where there is only a permission in principle because no details whatsoever have been submitted, and those cases where the failure has been limited to a failure to obtain approval for one particular aspect of the development. In the former case, common sense suggests that the planning permission has not been implemented at all. In the latter case, common sense suggests that the planning permission has been implemented, but there has been a breach of condition which can be enforced against. I appreciate that these are two opposite ends of a spectrum. Each case will have to be considered upon its own particular facts, and the outcome may well depend upon the number and the significance of the conditions that have not been complied with. Provided that the Court applies Wednesbury principles when considering these issues, there is no reason why it should usurp the responsibilities of the local planning authority.”
“89. Given the Court of Appeal's endorsement of the approach of Ouseley J in Hammerton, my agreement with that approach is superfluous. However, I too wish to express my agreement with Ouseley J's approach in Hammerton, since it gives practical effect to those parts of the statutory code which deal with enforcement, and ensures that a judge-made principle is not applied so inflexibly as to produce results which defy common sense and serve no useful planning purpose. 90. Applying the Hammerton approach, if I had concluded that condition 10 of the 1971 permission was a "condition precedent" of a kind to which "the Whitley principle" applied, I would have concluded that there had nevertheless been an effective implementation of the 1971 permission. I would have reached that conclusion on the basis that, limestone having been extracted from the original quarry for some 34 years and the restoration scheme mentioned in condition 10 having been overtaken by the restoration provisions in the 1989 and 1996 permissions, it would be both irrational and an abuse of power for the defendant now to commence enforcement action for the purpose of preventing or controlling extraction in the original quarry under the guise of a complaint that the claimants had, many years ago, failed to comply with condition 10, not least because if what is wanted is an up-to-date restoration scheme, that can be obtained by the defendant in its response to the claimant's ROMP application.”
“Paragraph 67 admits of the need to undertake a careful and possibly factual analysis of the condition in question. Equally, in my judgment, the last sentence of [67] is still part of the stage 2 reasoning. All Sullivan J was saying, in the context of the judicial review application before him, was that what he had said earlier did not mean that the court was second-guessing the judgment of the body being reviewed, i.e. the local council or the inspector, as to the proper construction of a condition, which may involve some factual considerations and judgments. The court would not substitute its own view for that of the relevant body. It was simply ensuring that the body’s conclusion was not Wednesbury unreasonable.”
“i) The interpretation of a condition attached to a planning permission is a matter for the courts. ii) The starting point is to consider what it meant by the words of the condition. iii) If a condition is intended to prohibit something, this should be spelled out in clear terms. iv) There is no difference between a condition which provides that no development should commence until a scheme is submitted and approved and one which provides that a scheme should be submitted and approved before development commences. v) Whether a breach of such a condition means simply that enforcement action may be taken to remedy the breach or whether it renders any commencement of development unlawful depends on whether the condition goes to the heart of the planning permission. vi) Whether a condition goes to the heart of the planning permission can be answered only by a fact-sensitive enquiry into the terms of the condition in the context of the permission, and the permission in its planning context. vii) Such a question is a matter of planning judgment and is not a matter for the court.”
“I have set out my conclusions on the factual matters. If I were the decision maker, I would be very attracted by the factual conclusions which the Claimant’s seeks to persuade me are to be drawn. Mr Lockhart-Mummery submits that this court is the fact finder for the purposes of determining whether there was jurisdiction to consider the s 73 application. I accept that submission up to a point. This Court may have to find facts which are disputed and which have not themselves been determined within the planning history. But if a decision in that planning history has been made on a particular factual basis which is alleged to be erroneous, then the time for challenging it was at the time it was made, and not two years’ later in the context of a further discrete application. That is in essence what the Claimant’s claim is seeking to do, which in my judgement is impermissible. Even if I had thought that it had merit, I would decline to exercise my discretion to quash the 2016 decision on this ground.”
“… whether or not the planning permission has been implemented has to be tested by examining the situation in an enforcement context by considering whether enforcement action is possible and if it is, leaving the outcome to be determined in the enforcement proceedings”
“I consider the principle discernible in Woolf LJ’s reasoning is that where it would be unlawful, in accordance with public law principles, notably irrationality or abuse of power, for a local planning authority to take enforcement action to prevent development proceeding, the development albeit in breach of planning control is nevertheless effective to commence development. Three of the passages from his judgment, to which I have referred in para 104, related his approach to the rational availability of enforcement proceedings. Enforcement action may still be taken to remedy the breach by requiring compliance with the condition. But the development cannot be stopped from proceeding. At §§130 and 131, Ouseley J continued: “130. However, if after the expiry of the five year period, it is possible to conclude that enforcement action is not lawfully possible, I see no reason why the development which cannot be enforced against should not be regarded as effective to commence development. The role of enforcement, and the statutory flexibility which it brings, cannot be left wholly out of the picture when reaching a conclusion on a matter about which the Act is not explicit – can development in breach of planning control ever be effective to commence a planning permission? This is itself a judicial interpolation into the statutory code. It too arises from the application of public law principles as to the legal consequences of unlawful though not criminal acts. No sound distinction can be drawn for these purposes between development which cannot be enforced against because there has been no breach of planning control and development which cannot be enforced against because such action would itself be unlawful. If, in language which the post Carnwath Report enforcement regime has made redundant, development in breach of planning control is immune from enforcement control, it should be regarded as effective to commence development. Such an approach flows from my analysis of the Whitley line of cases. 131. On that analysis, it would be insufficient to show that the authorities were indifferent to the breach, or unlikely to take enforcement action or indeed that they had decided not to (although no concluded view is required). It is necessary to conclude that they could not do so.”
“The enforcement proceedings which it is necessary to contemplate for the purposes of Mr Clayton’s submissions are not those which might seek to remedy the breach of condition by requiring the carrying out of the works of clearance and landscaping of the exchange land, for that would not prevent the carrying out of the underlying development. It is necessary to decide whether the authorities could rationally seek to prevent the whole development by asserting that the works were being carried out without any permission at all. I consider that such enforcement action would not be irrational, however unlikely in fact it might be, unless LUL could demolish the listed and unlisted Goods Yard, apart from the Viaduct, anyway.”
“An application made under section 73 is an application for planning permission (see section 73(1). The local planning authority’ duty in deciding planning applications is to have regard to both the development plans, which brings into play section 54A, and to any other material considerations (section 70(2))).”
“Considering only the conditions subject to which planning permission should be granted will be a more limited exercise than the consideration of a "normal" application for planning permission under section 70, but as Keene J. pointed out at page 207 of the Frost case, how much more limited will depend on the nature of the condition itself. If the condition relates to a narrow issue, such as hours of operation or the particular materials to be employed in the construction of the building, the local planning authority's consideration will be confined within a very narrow compass. Since the original planning permission will still be capable of implementation, the local planning authority looking at the practical consequences of imposing a different condition, as to hours or materials, will be considering the relative merit or harm of allowing the premises to remain open until, say, 10 o'clock rather than 80'clock in the evening, or to be tiled rather than slated. Equally, if an application is made under section 73 within the original time-limit for the submission of reserved matters, whilst implementation of the planning permission is still possible and is not precluded by the provisions of section 93(4), for a modest extension of time for the submission of reserved matters, the local planning authority's role in considering only the question of conditions subject to which planning permission should be granted will be more confined than in a normal section 70 case. The practical effect of submitting details one year later than would otherwise be allowed may be very limited. In my view, however, the position is different where, as in the present case, an application is made under section 73 to alter a condition so as to extend the period for submission of reserved matters at a time when the original planning permission is no longer capable of implementation by reason of the effect of section 93(4), because time for submission of reserved matters has expired. Whilst the council is constrained to consider only the question of the conditions subject to which planning permission should be granted, in deciding whether to grant a planning permission subject to different conditions under paragraph (a), or to refuse the application under paragraph (b), is it required to ignore the fact that the original planning permission is no longer capable of implementation so that if it adopts a latter course it will not be possible for the development to take place, whereas if it adopts the former course, it will be possible for the development to take place? … I do not see why, in such circumstances, the council in considering an application under section 73 should be required to shut its eyes to those practical consequences. If that is correct, I do not see why the position should be any different if the planning policies have changed since the grant of the original planning permission so that its implementation has become less desirable in planning terms. The local planning authority has to have regard to the factual circumstances as they exist at the time and to have regard to the facts that exist at the time of its decision. If at that time the original planning permission is incapable of implementation by reason of section 93(4), I can see no basis in the statutory code for requiring the local planning authority to ignore that important fact.”
“Subsection (4) indicates that the section clearly does not apply where the application purportedly made pursuant to it is made at a time when development had not been begun within the time specified by a condition. However, what is the position where the application is made in time but the consideration by the authority of that application is after the expiry of time? Does the Authority lose jurisdiction by reason of the expiry of time? In my judgment, based in part on the use of the verb “apply” in both subsections (1) and (4), the crucial time is the time of the application and there is no subsequent loss of jurisdiction to consider the matter. We have heard no submissions to the contrary.”
“44. The second element of ground 1 is that, if it is correct that the 2018 permission was not lawfully implemented, it was unlawful of the defendant to impose a condition upon the 2021 variation, which extended the implementation period by a further two years by stating: Within two years of the date of this decision, the as-built dwelling shall be amended in accordance with drawing numbers SGA-143-102D Issue PL 1 and SGA-143-104N Issue PL2 unless otherwise agreed in writing with the [defendant]. 45. I find that this condition is contrary to section 73(5). Although it purports to refer solely to “amendments” to a building, the 2018 permission was not implemented. This means the works that are the subject of the 2021 variation represent development which requires lawful commencement. In purporting to allow these works to take place, whether by way of amendments or otherwise, the defendant purported to allow the development to commence beyond the relevant three-year time limit imposed by the 2018 permission.”
“30. A “fallback” (i.e. development which an applicant could take without a further grant of planning permission) is capable of being a material consideration in favour of granting planning permission. The law as to how a decision maker should consider this is well settled. The relevant propositions can be derived from the decision of the Court of Appeal in R (Mansell) v Tonbridge and Malling BC[2019] PTSR 1452 at para 27 and the decision of Dove J in Gambone v SSCLG[2014] EWHC 952 (Admin) at paras 26-28 which draw on earlier cases. The key points (so far as material for present purposes) are:- a. The applicant has a lawful ability to undertake the fallback development; b. The applicant can show that there is at least a “real prospect” that it will undertake the “fallback” development if planning permission is refused. In Mansell at §27, Lindblom LJ explained that: “the basic principle is that “for a prospect to be a real prospect, it does not have to be probable or likely: a possibility will suffice”. c. Where a planning authority is satisfied that a fallback development should be treated as a material consideration, the authority will then have to consider what weight it should be afforded. This will involve: i. An assessment of the degree of probability of the fallback occurring. As Dove J observes in Gambone at para 27, the weight which might be attached to the fallback will vary materially from case to case and will be particularly fact sensitive; and ii. A comparison between the planning implications of the fallback and the planning implications of the Proposed Development: Gambone paras 26-28. d. The Courts have cautioned against imposing prescriptive requirements as to how and with what degree of precision the fallback is to be assessed by the decision maker. This is in recognition of the fact that what is required in any given case is fact sensitive. As Lindblom LJ observed in para 27(3) of Mansell, there is no general legal requirement that the landowner or developer set out “precisely how he would make use of any permitted development rights”
“the basic principle is that “for a prospect to be a real prospect, it does not have to be probable or likely: a possibility will suffice”. c. Where a planning authority is satisfied that a fallback development should be treated as a material consideration, the authority will then have to consider what weight it should be afforded. This will involve: i. An assessment of the degree of probability of the fallback occurring. As Dove J observes in Gambone at para 27, the weight which might be attached to the fallback will vary materially from case to case and will be particularly fact sensitive; and ii. A comparison between the planning implications of the fallback and the planning implications of the Proposed Development: Gambone paras 26-28. d. The Courts have cautioned against imposing prescriptive requirements as to how and with what degree of precision the fallback is to be assessed by the decision maker. This is in recognition of the fact that what is required in any given case is fact sensitive. As Lindblom LJ observed in para 27(3) of Mansell, there is no general legal requirement that the landowner or developer set out “precisely how he would make use of any permitted development rights”
“91. One such consideration, and no doubt one to which WCC might have wanted to ascribe great weight, was the fact that there was a permitted scheme in existence, which if it went ahead would include the restoration of the listed building. It may be that, on applying s 70(2) TCPA 1990 and s 38(6) PCPA 2004 that fallback position would have outweighed the clear objective of CM 28.1 of preventing a development with basements such as these from being built, with the consequent disruption of the street scene and of neighbours for an extended period. But assessment of the weight to be given to the fallback position must have looked at the likelihood of it going ahead without the proposed 2016 amendments, and of the likelihood of a scheme not going ahead which would not have included basements of the scale proposed here. 92. Those considerations were simply never explored by WCC. I do not suggest what weight should be given, nor how the competing advantages or disadvantages should be weighed the one against the other, or the s 38(6) balance determined. That is a matter for the local planning authority, and not for the Court. 93. Ground 2 therefore succeeds, subject to consideration of whether the decision would have been the same in any event. … 95. I return therefore to the effect of my conclusions on Ground 2. Given my conclusion that WCC approached this case with the erroneous mindset that it could not refuse permission for something which was in large part already approved, I do not consider that this is a case where I can conclude that, had it approached its duties in accordance with the law, the outcome would have been the same.”
“In my judgment, the appellant is entitled to a fresh consideration of the application by the planning committee. There is a real risk that in taking the decisions they did in October 2001 there was a potential motivation, as would be perceived by a fair-minded member of the public, that a wish to support their chief planning officer and to avoid the possibility of judicial review were factors which led to the relevant decisions. I stress that it is a potential risk. There is no evidence that there was improper motivation”