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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Pressland v The Council of the London Borough of Hammersmith and Fulham [2016] EWHC 1763 (Admin) (15 July 2016) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2016/1763.html Cite as: [2016] WLR(D) 412, [2016] EWHC 1763 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/07/2016

John Howell QC:

1. The question raised by this claim for judicial review is whether or not an application may be made under section 73 of the Town and Country Planning Act 1990 ("the 1990 Act") for the grant of planning permission for the development of land without complying with conditions subject to which a prior approval was granted for development permitted by virtue of a development order made by the Secretary of State.
2. Permission to make this claim was granted by Gilbart J.

BACKGROUND

3. The general rule in the 1990 Act is that planning permission is required for the carrying out of any development of land: see section 57(1). Such development may involve either the carrying out of certain operations in, over or under land or the making of any material change in the use of any buildings or other land: see section 55(1).
4. There are a number of ways in which any planning permission required may be granted. It may be granted, for example, "(a) by a development order" made by the Secretary of State or "(b) by the local planning authority...on an application to the authority...in accordance with a development order": see section 58(1). Thus section 59 of the 1990 Act provides that:

"(1) The Secretary of State shall by order (in this Act referred to as a "development order") provide for the granting of planning permission.

(2) A development order may either—

(a) itself grant planning permission for development specified in the order or for development of any class specified; or

(b) in respect of development for which planning permission is not granted by the order itself, provide for the granting of planning permission by the local planning authority....on application to the authority....in accordance with the provisions of the order.

(3) A development order may be made either—

(a) as a general order applicable, except so far as the order otherwise provides, to all land, or

(b) as a special order applicable only to such land or descriptions of land as may be specified in the order."

5. Section 60 of the 1990 Act provides in relation to permission granted by a development order inter alia that:

"(1) Planning permission granted by a development order may be granted either unconditionally or subject to such conditions or limitations as may be specified in the order.

......

(2) Without prejudice to the generality of subsection (1), where planning permission is granted by a development order for the erection, extension or alteration of any buildings, the order may require the approval of the local planning authority to be obtained with respect to the design or external appearance of the buildings.

(2A) Without prejudice to the generality of subsection (1), where planning permission is granted by a development order for development consisting of a change in the use of land in England, the order may require the approval of the local planning authority, or of the Secretary of State, to be obtained—

(a) for the use of the land for the new use;

(b) with respect to matters that relate to the new use and are specified in the order."

6. Article 3 of the Town and Country Planning (General Permitted Development) Order 2015 ("the 2015 Order") provides inter alia that:

"(1) Subject to the provisions of this Order......, planning permission is hereby granted for the classes of development described as permitted development in Schedule 2.

(2) Any permission granted by paragraph (1) is subject to any relevant exception, limitation or condition specified in Schedule 2."

7. Part 3 of Schedule 2 deals with changes of use. Development permitted in that Part under Class O comprises:

"Development consisting of a change of use of a building and any land within its curtilage from a use falling within Class B1(a) (offices) of the Schedule to the Use Classes Order, to a use falling within Class C3 (dwellinghouses) of that Schedule."

8. Paragraph O.1 specifies that development is not permitted by Class O in the case of certain land or uses. By virtue of paragraph O.2:

"Development under Class O is permitted subject to the condition that before beginning the development, the developer must apply to the local planning authority for a determination as to whether the prior approval of the authority will be required as to—

(a) transport and highways impacts of the development,

(b) contamination risks on the site,

(c) flooding risks on the site, and

(d) impacts of noise from commercial premises on the intended occupiers of the development,

and the provisions of paragraph W (prior approval) apply in relation to that application."

9. Paragraph W is a provision that applies to a number of other classes of permitted development in Schedule 2 of the Order as well as Class O. It requires any application for a determination whether prior approval will be required to contain a written description of the proposed development, a plan indicating the site and showing the proposed development and certain other information: see paragraph W(2). The local planning authority have power to require information from the applicant including details of any proposed operations; assessments of impacts or risks, and statements of how they are to be mitigated: see paragraph W(9). The authority may refuse the application if they consider that the proposed development does not comply with any conditions, limitations or restrictions specified in Part 3 of Schedule 2 as being applicable to the development in question or if they consider that insufficient information has been provided to enable the authority to establish whether the proposed development does so: see paragraph W(3). Such a refusal is to be treated for the purpose of section 78 of the 1990 Act, which governs appeals to the Secretary of State, as a refusal of an application for approval: see paragraph W(4). If they do not refuse the application on that basis, paragraph W also requires the authority to consult other specified persons about any of the relevant impacts or risks and to advertise the application: see paragraphs W(4) to W(8).
10. Paragraph W further provides that:

"(11) The development must not begin before the occurrence of one of the following—

(a) the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required;

(b) the receipt by the applicant from the local planning authority of a written notice giving their prior approval; or

(c) the expiry of 56 days following the date on which the application [for prior approval] was received by the local planning authority without the authority notifying the applicant as to whether prior approval is given or refused.

(12) The development must be carried out—

(a) where prior approval is required, in accordance with the details approved by the local planning authority;

(b) where prior approval is not required, or where sub-paragraph (11)(c) applies, in accordance with the details provided in the application.....,

unless the local planning authority and the developer agree otherwise in writing.

(13) The local planning authority may grant prior approval unconditionally or subject to conditions reasonably related to the subject matter of the prior approval."

If the authority determines that the site will be contaminated land, however, they must refuse prior approval: see paragraph W(10)(c).

11. In this case, on March 6th 2015, the Claimant, Mr Justin Edward Pressland, and the Interested Party, Mr Paul Pressland, applied to the Defendant, the Council of the London Borough of Hammersmith and Fulham, for a determination under the Town and Country Planning (General Permitted Development) Order 1995 whether prior approval was required before making a change in the use of the ground, first and second floors of 11A Hannell Road, London SW6 7RA, from an office into three self contained residential flats. By virtue of section 17(2)(b) of the Interpretation Act 1978, that application fell to be treated after April 15th 2015 (when the 2015 Order came into force) as an application made for such a determination under Class O of Part 3 of Schedule 2 to the 2015 Order.
12. On May 1st 2015 the Council granted prior approval for the change of use of the premises "subject to" fourteen conditions. For present purposes their precise content is irrelevant, although it may be noted that a number required the subsequent submission, approval and implementation of schemes to deal with various matters.
13. On July 16th 2015 the Claimant and the Interested Party applied under section 73 of the Town and Country Planning Act 1990 for permission to make the change of use permitted without complying with eight of those conditions.
14. Section 73 provides inter alia that:

"(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."

If permission is granted under section 73, it constitutes a new permission. It leaves the original permission unamended. Advantage can then be taken of either: see R v Coventry City Council ex p Arrowcroft Group Limited [2001] PLCR 7 per Sullivan J (as he then was) at [22].

15. On September 11th 2015 the Council decided that the application was invalid as it was not one that could be entertained under section 73 of the 1990 Act, given that it related to conditions subject to which prior approval had been granted. That is the decision which is impugned in this claim for judicial review.

SUBMISSIONS

16. On behalf of the Claimant, Ms Sarah Clover submits that there is nothing in section 73 of the 1990 Act that limits its application to planning permissions granted on an application made to a local planning authority to the exclusion of planning permissions granted by a development order. It applies to any previous planning permission granted subject to conditions. In this case all the conditions in question were ones that applied to the permission conferred by Class O.
17. Ms Clover submits that any attempt to distinguish between conditions imposed on the grant of permission and those imposed on the grant of prior approval has no legal basis. There is no such thing as a prior approval. That is merely a process and not an authorisation. The only thing that exists and has been granted, and must be crystallised, is the planning permission. Any conditions imposed in the exercise of the power conferred by paragraph W(13) are not attached to any prior approval. Such conditions are added to the planning permission, because there is nowhere else for the conditions to reside. Any condition imposed on the grant of any prior approval can only be a condition subject to which planning permission has been granted since, otherwise, a breach of it will not constitute a breach of planning control and it will not be enforceable under Part VII of the 1990 Act.
18. Ms Clover further submits that there is no reason to distinguish between planning permissions granted on an application and those granted by a development order for the purpose of section 73. In each case the principle of the development has already been settled. The argument that any grant of permission without complying with the conditions subject to which the development order permission was granted would result in an unconditional permission applicable throughout the country is misconceived: the permission given by the development order is not complete until the terms of the Order are complied with. In a case in which prior approval is required, the permission is defined by, or accrues with, the grant of that prior approval for the particular site: see R (Orange Personal Communications Services Ltd) v Islington LBC [2006] EWCA Civ 157, [2006] JPL 1309, per Laws LJ at [28]; Murrell v Secretary of State for Communities and Local Government [2010] EWCA Civ 1367, [2012] 1 P&CR 6, at [41]. The planning permission does not exist until then. Without the discharge of condition imposed by paragraph O.2 there is no permission. There is no reason why a person with the benefit of such a permission for development should not be able to take advantage of the more efficient procedure for changing conditions that section 73 of the 1990 Act provides and why such a person should be forced either to appeal to the Secretary of State against their imposition under section 78 of the 1990 Act or to submit an ordinary application for planning permission.
19. On behalf of the Council, Mr Tim Buley, contends that the fundamental flaw in the Claimant's case is that it fails to distinguish between the grant of prior approval and a grant of planning permission. The two are not the same, as section 78(1)(a) and (c) of the 1990 Act recognises. The grant of prior approval may be made the subject of a condition but such a condition is not a condition subject to which planning permission was granted by the development order or one which, for the purpose of section 73, it was subject to. The grant of prior approval constitutes the discharge of a condition on the permission granted by the development order.
20. Mr Buley further contends that the permission granted by Class O of the 2015 Order was not granted subject to conditions imposed by the local authority: it was granted long before those conditions were imposed, as sections 58 and 60 of the 1990 Act and article 3 of the 2015 Order make plain. That permission is of general application: it is not one attached to a specific site. If the permission granted by the development order could be granted subject to different conditions by virtue of section 73, it would be pointless to grant it subject to a condition requiring the authority's prior approval once again. But, if it was not granted subject to such a condition, it would not be a permission tied to any particular site or form of development: it would be entirely general in application, something that a local planning authority has no power to grant.
21. Mr Buley further submits that section 73 of the 1990 Act is concerned only with planning permissions granted on an application. Section 73, together with section 70 (which gives local planning authorities power to grant planning permission on an application), appears in a sub-division of Part III of the 1990 Act that deals with determination of applications. That is why section 73 refers to a "previous planning permission": it contemplates a specific, previous grant of permission. So construed, it precludes the local planning authority from removing or modifying conditions imposed by the Secretary of State, rather than those which they themselves have imposed.

CONSIDERATION

22. Section 73 is concerned with the development of land without complying with "conditions subject to which a previous planning permission was granted".

(a) whether the conditions imposed on any required subsequent approval are conditions subject to which planning permission has been granted

23. Any conditions which may be imposed under paragraph W(13) are not identified in the development order itself as conditions subject to which development in Class O is permitted (as the condition in paragraph O.2 is). Any conditions imposed by the local authority are described as those subject to which the grant of prior approval, not the grant of the permission itself, is subject.
24. In my judgment, however, if the prior approval is granted subject to conditions, that does not mean that such conditions are not conditions subject to which the Class O planning permission was granted in that case. Planning permissions are granted subject to such conditions as may be imposed when either the permission or any subsequent required approval is granted.
25. Because the provisions of Class O and paragraph W are relatively more complicated, it is useful to consider first the legal effect of any conditions which may be imposed by a local planning authority (i) on an approval required by a condition subject to which planning permission was granted on an application made to that authority and (ii) on any prior approval required by a development order before a planning permission granted by that order may be implemented.
26. Since the Act of 1947, the principal Town and Country Planning Acts have all contained enactments providing (i) that planning permission may be granted by a development order subject to such conditions or limitations as may be specified in the order; (ii) that, without prejudice to the generality of that provision, conditions specified in the order may require the approval of the local planning authority to be obtained with respect to certain matters; and (iii) that, where the approval of that authority is required under a development order, the applicant may appeal to the Secretary of State if aggrieved by their decision to grant it subject to conditions.
27. The first of these provisions (now^[1] contained in section 60(1) of the 1990 Act, which is quoted in paragraph 5 above) in fact renders the second (now^[2] contained in section 60(2) of the 1990 Act, which is quoted in paragraph 5 above) unnecessary. A condition requiring the approval of the local planning authority would be one specified in the development order. That is no doubt why section 60(2) is stated to be without prejudice to the generality of section 60(1), as is section 60(2A). They make explicit what is implicit in section 60(1). Prima facie, however, any conditions imposed by a local planning authority on any approval required by a development order might appear to be ultra vires: such conditions are not ones specified in the development order made by the Secretary of State itself (as section 60(1) of the 1990 Act appears to require). They are specified by the local planning authority in the exercise of a power of approval given to them by that order. But, whether conferring a power on a local planning authority to impose such conditions on any required approval or whether any attempt by them to do so would be beyond the powers that Parliament intended to confer must ultimately depend on the construction of the relevant legislation as a whole. It is plain from the third provision, now^[3] contained in section 78(1)(c) of the 1990 Act, that Parliament took the first and second provisions to be ones that enabled a local planning authority to impose conditions on any required approval which they granted.
28. Section 78(1) of the 1990 Act provides that:

"Where a local planning authority—

(a) refuse an application for planning permission or grant it subject to conditions;

(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 or a neighbourhood development order or grant it subject to conditions,

the applicant may by notice appeal to the Secretary of State."

29. The same issue also arises with respect to the imposition of conditions on any consent, agreement or approval required by a condition imposed on a grant of planning permission following an application for permission to the local planning authority. When an application is made to a local planning authority, they have power to grant planning permission either unconditionally or subject to such conditions as they think fit: see section 70(1) of the 1990 Act. Such a condition may require the subsequent consent, agreement or approval of the authority to some matter, as in the case of an outline planning permission: see section 92(1) of the 1990 Act. But the legislation does not expressly empower, or provide any power to confer a power on, a local authority to impose any conditions on any such required consent, agreement or approval. Nonetheless it is plain from the terms of section 78(1)(b) of the 1990 Act that Parliament intended that such conditions could be imposed by the authority when granting such consent, agreement or approval.
30. It follows, therefore, that, for this reason, I agree with the conclusion reached by Roch J in R v Newbury District Council ex p Stevens and Partridge (1992) 65 P&CR 438 that planning law recognises the power to give conditional approval when an approval is required by a condition imposed on a grant of planning permission by a local planning authority, and that I disagree, for the same reason, with the view expressed by Collins J (apparently following agreement between the parties) in R (Lucchetti) v South Norfolk District Council [2012] EWHC 3557 (Admin) at [31] that "it is not for the [local planning authority] to impose conditions independently of those that flow from the terms of the [General Permitted Development Order]", whether or not provision is made in the Order for the imposition of such conditions.
31. This is not, however, to accept, as Ms Clover submits, that there is no distinction to be made between the grant of planning permission and the grant of any required approval or that the only thing that exists that has been granted in either case is planning permission. Nor is it to accept, as Roch J appears to have done in R v Newbury District Council ex p Stevens and Partridge supra at p447, that the absence of any reference to "approvals" or "approvals of reserved matters" in the definitions of a "planning permission" and "planning decision" provided for the purposes of the Act means that there is no difference between them. Parliament has manifestly distinguished between the grant of permission and the grant of approvals required by a condition, as section 78(1) is of itself sufficient to demonstrate, and the scope of what may be taken into account when considering whether or not to grant such an approval is more constrained than it is, for example, when considering whether or not planning permission should be granted. When considering whether to grant approval, the principle of development is not normally for consideration: see eg Murrell v Secretary of State for Communities and Local Government supra at [45].
32. The fact that planning law recognises a distinction, as it does for example in section 78(1) of the 1990 Act, between the grant of permission subject to conditions and the grant of a required approval subject to conditions, however, does not mean as Mr Buley's submissions assume, that the conditions subject to which any such approval is granted are not conditions subject to which such a planning permission has been granted.
33. The different paragraphs in section 78(1) distinguish the different types of application the decision on which by a local planning authority may be made the subject of an appeal to the Secretary of State. They are not concerned to define what the legal effect of a grant of an application for approval subject to conditions under either paragraph (b) or (c) may be. To ascertain what their legal effect is requires an analysis of the statutory scheme to ascertain what Parliament intended.
34. A local planning authority may grant an application for any consent, agreement or approval required by a condition imposed on a grant of planning permission (referred to in paragraph (b) of section 78(1)) subject to conditions. It is no doubt the case that such a condition may serve merely to define what the development permitted is in greater detail or to preclude the carrying out of development until something occurs: carrying out the development otherwise than in accordance with such a condition may mean that the whole development is carried out without the planning permission required for it. But other conditions may be imposed which, without unlawfully modifying the permission that has been granted without compensation, may provide for things to be done or not done which, if breached, would not cause the development to be carried out without permission. If such conditions were not ones "subject to which planning permission has been granted", however, they would be unenforceable under Part VII of the 1990 Act.
35. Part VII of the 1990 Act enables enforcement proceedings of different descriptions to be taken in respect of a breach of planning control. Section 173A(1) of the Act provides that:

"(1) For the purposes of this Act—

(a) carrying out development without the required planning permission; or

(b) failing to comply with any condition or limitation subject to which planning permission has been granted,

constitutes a breach of planning control."

36. Mr Buley's submissions assume that the only conditions subject to which planning permission has been granted are those imposed at the same time as the grant of that permission. The fact that a condition subject to which a subsequent required approval was given was not imposed when the permission was granted does not mean in my judgment, however, that the permission has not been granted subject to it as a result of that conditional approval. Thus, for example, in the case of an outline planning permission granted subject to the approval of reserved matters, the permission is granted subject to compliance with what is approved (which may serve to define what the permission is for), and given that any approval may be conditional, subject to any conditions that may be imposed on that approval. That is what the legislation entails. Once imposed such a condition is one subject to which planning permission has been granted. Planning permissions are granted subject to such conditions as may be imposed when either the permission or any subsequent required approval is granted. Again, in my judgment it makes no difference in principle whether the approval granted subject to a condition is one required by a condition imposed by a planning authority on the grant of a planning permission or one required by a condition imposed on the grant of planning permission by a development order made by the Secretary of State. In each case the planning permission is granted subject to any conditions that may be imposed on the required approval. Once imposed, it is a condition subject to which planning permission has been granted.
37. The position under Class O and paragraph W differs in some respects from those two types of case which I have considered. That is because there is no condition imposed on the grant of the permission by the 2015 Order that requires the prior approval of the authority to be obtained before development is begun or that requires any application to be made for it.
38. The application which is required to be made before any permitted development is begun by virtue of condition imposed by paragraph O.2 is one to determine whether or not prior approval is required for certain matters. This may raise an issue about whether an appeal lies under section 78(1)(c) against a decision on the application which he condition imposed by paragraph O.2 requires to be made, since that is not, at least prima facie, "an application for any approval of that authority required under a development order". That approval is not necessarily required, and neither is an application for it required to be made, under the development order. It may also be said that the provision in paragraph W(4), that the refusal of the application for a determination whether prior approval is required on the grounds mentioned in W(3) "is to be treated as a refusal of an application for approval" for the purpose of section 78 of the 1990 Act, supports the argument that no appeal lies against a decision on such an application absent such a deeming provision. In my judgment, however, this approach requires too literal a reading of the relevant provisions of the development order. The approval of the local planning authority for certain matters is required under the development order if that authority determines that it is and, while the application made is expressed to be for a determination whether such prior approval is required, paragraph W requires the application to be treated by the authority as an application for the approval of such details if they determine that such approval required. Thus such details may either be approved under paragraph W(12)(a) or refused within the prescribed period under paragraph W(11)(c). Accordingly in my judgment, if any prior approval required under the development order (an application for which the authority is thus required to treat as having been made) is refused or granted subject to conditions, an appeal lies to the Secretary of State under section 78(1)(c) of the 1990 Act. There appears to be no reason why there should be no right to appeal against such decisions when there is a such right of appeal to the Secretary of State under section 78(1)(b) and (c) against such decisions on an application for approval required by a condition imposed on the grant of a planning permission or on an application for approval required under a development order.
39. As I have indicated, in any event there is no condition specified in the 2015 Order that requires any prior approval to be obtained for a Class O development. The only condition specified in the Order itself subject to which Class O permission is granted is the condition imposed by paragraph O.2^[4]. Thus paragraph W(12)(b) requires the development to be carried out where prior approval is not required, or where the authority have not notified the applicant whether it is given or refused within the specified period, in accordance with the details provided in the application made under paragraph W. In my judgment such details serve in those cases to define the Class O permission granted for the development in such cases. Where prior approval is required and given, paragraph W(12)(a) requires the development to be carried out in accordance with the details approved by the local planning authority. This likewise in my judgment serves to define the permission granted. Neither requirement is a positive condition that requires the developer to carry out any development. Neither is described in paragraph W as constituting a condition. Their function is to define or limit what is permitted (just as the grant by a local planning authority of planning permission for a development in accordance with the application made for it would do). If the development is not carried out in accordance with such details then the breach of planning control is not a breach of condition. The breach of planning control is either the carrying out of development without the required permission for it^[5] or a failure to comply with a limitation subject to which planning permission was granted^[6].
40. Paragraph W(13) empowers the authority to grant prior approval subject to conditions reasonably related to the subject matter of the prior approval. In my judgment, where prior approval is granted subject to such conditions, the permission granted by Class O is granted subject to such conditions (as it is in the case of other conditional approvals where such approvals are required by a condition subject to which planning permission was granted).
41. It is true, as Mr Buley pointed out, that the Class O permission is granted by the development order itself, not by the prior approval. That is plain from the terms of sections 59(2)(a) and 60(1) of the 1990 Act and article 3(1) of the 2015 Order (quoted in paragraphs 4, 5 and 6 above). Ms Clover's contention that the permission accrues or crystallises with the grant of prior approval is no answer to the express terms of these enactments. The case is no different in principle from a planning permission granted by a planning authority subject to a condition requiring the subsequent approval of certain matters: the permission is granted when that condition is imposed, not when all such matters are approved. Moreover the cases on which Ms Clover relies are directed at a different question. In R (Orange Personal Communications Services Limited) v Islington LBC supra the question was whether the development order permission (as defined by the details submitted with an application for prior approval when that application was approved) was lost when the land to which it related was included within a conservation area. Development within such an area was not permitted development. The Court of Appeal held that, where prior approval had to be sought, planning permission accrued on the receipt of the authority's decision on that application and was not lost by the inclusion of the land subsequently in a conservation area: see at [28]. That meant that the local authority would have had to use an article 4 direction to prohibit the carrying out of the development permitted by the order, and to pay compensation accordingly, if they wished to do so given the inclusion of the land within the conservation area: see at [6]. The question whether the permission was granted by the development order when the development order was made did not arise. The question concerned when the permission otherwise granted might be lost by virtue of a limitation in the development order on its application. Had the court been addressing the question of when the permission was granted, it would not have used the term "accrual" which, as it pointed out, does not appear in the legislation: see at [28]. In Murrell v Secretary of State for Communities and Local Government supra, the relevant issue was whether it was lawful for the permission granted by the development order to be implemented once the period provided for the local authority to decide whether prior approval was required had expired (as the condition in the relevant development order stipulated) even if the authority subsequently refused to give their prior approval. The Court of Appeal held that it was, given the terms of that condition and the fact that prior approval was only required under the relevant provisions of the order if the authority notified the applicant within that period that it was required: on the expiry of the relevant period, permission for the development "accrued": see at [28] and [40]. In neither case was the question raised: when was the planning permission granted by the development order granted. In each case the question concerned when it could be relied on to authorise the development permitted given subsequent events.
42. It is equally true, as Mr Buley points out, that article 3(2) provides that any permission granted by article 3(1) of the 2015 Order (as the permission in Class O is) is made "subject to any relevant exception, limitation or condition specified in Schedule 2" (by virtue of article 3(2)) and that the only such relevant condition specified in Schedule 2 itself is the condition imposed by O.2. Nonetheless the provisions of paragraph W apply when the application which that condition requires is made: see paragraph O.2; paragraph W(1). Paragraph W provides that any prior approval determined to be required may be granted subject to such conditions relating to relevant matters as the local authority may impose. Just as a conditional approval of reserved matters on an outline permission means that the permission is granted subject to the conditions thus imposed, so equally in my judgment the permission granted by Class O which is defined by the details that are approved by the authority is subject to the conditions subject to which that approval was granted. In my judgment Mr Buley's submissions on this point are flawed by the assumption that the only conditions subject to which planning permission may be granted are those imposed when that permission is granted.
43. For these reasons in my judgment any conditions subject to which prior approval is granted by virtue of paragraph W(13) are conditions subject to which the relevant Class O planning permission is granted.

(b) the applicability of section 73 of the 1990 Act where a previous planning permission was not granted on an application made to the local planning authority

44. Mr Buley nonetheless contends that section 73 of the 1990 Act cannot refer to the permission granted by the 2015 Order and that it is only intended to apply to a planning permission granted following an application for it.
45. It is true that section 73 of the 1990 Act falls within a sub-division of Part III entitled "determinations". That is unsurprising since an application has to be made for permission to be granted under that section. More significantly, section 73 of the 1990 Act does not refer to how the "previous planning permission [to which it refers] was granted". Planning permission may be granted by a development order made by the Secretary of State; by a local development order; by a Mayoral development order; by a neighbourhood development order; by a simplified planning zone or enterprise zone scheme, and when certain development is authorised under other enactments by a government department as well as on the basis of an application: see section 58 of the 1990 Act. The application of section 73 of the 1990 Act is not limited in terms, as is the power to revoke or modify a planning permission under section 97(1) of the 1990 Act, to "any permission to develop land granted on an application made under this Part". Nor in my judgment is there a basis for reading any such limitation into section 73 where it does not appear.
46. Mr Buley's main argument for treating section 73 of the 1990 Act as inapplicable to permissions granted by a development order concerns the general application of a permission, such as the Class O permission, granted for development of a specified class. As he pointed out, there would be no point in granting permission under section 73 for a Class O development again subject to condition imposed by paragraph O.2. But, so he submits in effect, it would be impermissible for a local planning authority to grant it without the mechanism it provides to tie the permission to a specific site. Any permission so granted would be of general application and local planning authorities have no power to grant any such application.
47. Whatever the merits of that argument, it is not of itself sufficient to support the exclusion of any permission granted by a development order. Such an order may grant permission for development specified in the order (as well as for development of a specified class) and may be made as a special order applicable only to such land as may be specified in the order: see section 59(2)(a) and 59(3)(b) of the 1990 Act (quoted in paragraph 4 above). The permission thus granted may be for a specific development on a specific area of land.
48. Ms Clover sought to suggest that Mr Buley's argument was misconceived, however, on two grounds. First she submitted that it would be "nonsensical" for anyone to apply for permission to carry out a development without complying with the condition imposed by paragraph O.2. But in my judgment Mr Buley is right: not to do so would normally be pointless. It would merely require the process of consultation and decision under paragraph W to be carried out again, something that could be achieved by making a further application for a determination whether prior approval was required. The only, but highly improbable, reason why an applicant might want to do so, given the terms of paragraph W(13), would be to enable the local planning authority to impose a condition that does not reasonably relate to the matters about which prior approval may be necessary. Ms Clover's second argument is that planning permission under Class O does not exist until the requirements of paragraphs O.2 and W are complied with. As I have indicated her submission is that, in a case in which prior approval is required, the permission only accrues or crystallises with the grant of that prior approval for the particular site: see R (Orange Personal Communications Services Ltd) v Islington LBC [2006] EWCA Civ 157, [2006] JPL 1309, per Laws LJ at [28]; Murrell v Secretary of State for Communities and Local Government [2010] EWCA Civ 1367, [2012] 1 P&CR 6, at [41]. For the reasons given above, that contention is misconceived. The relevant permission is granted by the development order itself, even if it cannot be relied on to authorise the carrying out of any development until the application required by Condition O.2 has been made and one of the occurrences specified in paragraph W(11) has occurred.
49. It is, therefore, necessary to consider Mr Buley's argument on the assumption, for example, that no application has been made in accordance with condition O.2 when the application is made under section 73 of the 1990 Act. The application for planning permission under section 73 would thus be one for the development of land without complying with condition imposed by paragraph O.2. Such an application could plainly not be made in respect of any land falling within any of classes excluded from the Class O permission by paragraph O.1. But, no doubt subject to that, Mr Buley contends in effect that, if such a permission were to be granted, it would not be tied to any land but would constitute the grant of Class O permission for any land anywhere in England without compliance with the condition imposed by paragraph O.2. He points out that, unlike other applications for planning permission, when an application is made under section 73, it is not required, by the Town and Country Planning (Development Management Procedure) (England) Order 2015, to be accompanied by a plan which identifies the land to which the application relates and any other plans, drawings and information necessary to describe the development which is the subject of the application: see article 7(1)(c) of that Order ("the Procedure Order").
50. In my judgment the principal fallacy in Mr Buley's argument is that an application for planning permission is always made with respect to a particular area of land. Thus the applicant has to give notice to those interested in the land to which the application relates and must issue a certificate as to the interests in it: see section 60 of the 1990 Act and articles 13 and 14 of, and Schedule 2 to, the Procedure Order. It is also necessary for that land to be identified to determine the relevant authority to whom the application is to be made: see articles 11(1) and 11(2)(b) of that Order. Accordingly Mr Buley's fundamental point, that permission if granted under section 73 would relate to the country generally is flawed: it would only relate to the particular area of land which is the subject of the particular section 73 application.
51. The Secretary of State no doubt assumed, when relaxing the normal requirements for section 73 applications in article 7(1)(c) of the Procedure Order, that the previous planning permission to which it relates will have been one granted on an application. But in my judgment any such assumption contained in such subordinate legislation cannot modify the relevant primary legislation. Such subordinate legislation as to the form of an application, the particulars to be included in it and the documents and other materials to accompany it (made under section 62(2) of the 1990 Act) can neither enlarge nor restrict the applications which the primary legislation entitles persons to make. Moreover in my judgment there is nothing necessarily to preclude a local planning authority from themselves requiring, under section 62(3) of the 1990 Act, such particulars as they think necessary in an application made under section 73 when the previous planning permission was not granted on an application. But in any event, any uncertainty as to the land to which any permission granted under section 73 relates, or the precise description of the development permitted, could be resolved by the use of appropriate conditions imposed on the grant of permission. A local planning authority can grant planning permission on an application under section 73 subject to a condition which is not the subject of the application: their discretion as to what conditions to impose is not constrained by it: see R v Leicester City Council ex p Powergen UK Plc (2001) 81 P&CR 5 per Schiemann LJ at [29].
52. Finding that an application may be made under section 73 for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted by a development order does not mean that the local planning authority are obliged to grant it. They are obliged to refuse it if they decide that it should be granted subject to the same conditions. The fact that any conditions in a development order itself were specified by the Secretary of State is not necessarily of itself a reason for refusal, any more than it would be if the previous conditional planning permission had been granted on appeal by the Secretary of State. There are, however, different requirements for consultation on an application for a determination whether prior approval is required for a Class O development and on an application for permission made under section 73. That of itself might be a reason for refusing any such application. But ultimately the question whether the application should be granted unconditionally or subject to conditions differing from those to which the permission under the development order was granted (including those imposed when granting any required prior approval) is one for the local planning authority.

CONCLUSION

53. For the reasons given, an application may be made under section 73 of the 1990 Act for the development of land without complying with conditions subject to which a previous planning permission was granted by a development order. Those conditions include those subject to which any prior approval required under the development order was granted. Planning permissions are granted subject to such conditions as may be imposed when either the permission or any subsequent required approval is granted. Accordingly the Council erred in law when refusing, in the decision impugned, to treat the application made by the Claimant and the Interested party as a valid application under section 73 of the 1990 Act.

Note 1   . Previously provisions to that effect were contained in section 13(2) of the Town and Country Planning Act 1947; then section 14(4) of the Town and Country Planning Act 1962; and then section 24(4) of the Town and Country Planning Act 1971.    [Back]

Note 2   . Previously provisions to that effect were contained in section 13(3) of the Town and Country Planning Act 1947; then section 14(5)(a) of the Town and Country Planning Act 1962; and then section 24(5)(a) of the Town and Country Planning Act 1971.    [Back]

Note 3   . Previously provisions to that effect were contained in section 16(1) of the Town and Country Planning Act 1947; then section 23(1) of the Town and Country Planning Act 1962; and then section 36(1) of the Town and Country Planning Act 1971.    [Back]

Note 4   . Paragraph O.1 is not described as imposing a condition: it contains exceptions or limitations on the permission granted by Class O.    [Back]

Note 5   . see Garland v Minister of Housing and Local Government (1969) 20 P&CR 93, Copeland Borough Council v Secretary of State for the Environment (1976) 31 P&CR 403 at pp405, 406-7; and Roberts v South Gloucestershire District Council [2002] EWCA Civ 1568, [2003] 1 P&CR 26, at [38]-[39].    [Back]

Note 6   . see cases on what constitutes a limitation from Wilson v West Sussex County Council [1963] 2 QB 764 to Winchester City Council v Secretary of State for Communities and Local Government [2015] EWCA Civ 563, [2015] JPL 1184. The historical reasons for the view that limitations involved in the grant of planning permission by a local planning authority are not enforceable as such as a breach of planning control do not apply to limitations included in permissions granted by development order: cf I’m Your Man Limited v Secretary of State for the Environment (1998) 77 P&CR 251.    [Back]