R (Barbara Atwill) v New Forest National Park Authority [2023] EWHC 625 (Admin)

R (Barbara Atwill) v New Forest National Park Authority [2023] EWHC 625 (Admin) is a Planning Court judgment about the limits of section 73, the lawful commencement of an earlier permission and the use of variation conditions where the actual development was not authorised.

The High Court upheld the claimant’s challenge on grounds 1 to 5 and 7. Lane J found that the authority could not simply rely on demolition of an earlier dwelling as implementation of a permission when the subsequent replacement dwelling was an unauthorised and materially different building. The decision also addressed the description of development and conditions relating to a garage and lighting.

Court: High Court, King’s Bench Division (Planning Court). Judge: Lane J. Judgment date: 22 March 2023. Case number: CO/3162/2022. Interested party: Angela Vickers.

The replacement house at Godshill Wood

The case concerned a replacement dwelling and associated garage at Paysanne, Godshill Wood, within the New Forest National Park and a conservation area. A 2018 permission authorised a replacement dwelling with an outbuilding. The neighbouring owner objected to changes in siting, dimensions, glazing, orientation and external lighting, contending that the development as built materially differed from the authorised scheme.

The authority itself had served an enforcement notice in February 2021 alleging that a dwelling and outbuilding had been erected without planning permission and requiring their demolition. A proposed variation was refused in February 2021, but a later application under section 73 was approved in July 2022. The claimant challenged that later approval.

Demolition did not establish lawful commencement

Section 56 of the Town and Country Planning Act 1990 provides that development begins when a material operation comprised in the development is undertaken. The authority had treated demolition of the old house as commencement of the replacement dwelling authorised in 2018, even though the house subsequently built was materially different and subject to enforcement.

Lane J considered the approach in Commercial Land, together with Green and Silver. The test is objective: the operations relied upon must properly be attributable to development carried out pursuant to the planning permission in question. The court found that the authority’s reliance upon the demolition alone was unlawful. The installation of the sewage treatment facilities did not cure the problem.

This did not establish that demolition can never commence a planning permission. Rather, the authority could not treat preliminary operations as a substitute for assessing whether the development actually undertaken fell within the permission it sought to vary.

Section 73 could not extend an expired permission

Under section 73(4), an application to vary conditions is unavailable where the original time limit for beginning development expired without that development having begun. Section 73(5) also prevents use of that route to extend the period within which development must be started in England. Lane J found that the 2018 permission had not been implemented and that the 2022 decision purported to allow the development to proceed for a further two years by framing works as alterations to the building already constructed.

The court concluded that this was contrary to section 73(5). The authority could not use the variation procedure as a means of regularising development outside the operative permission or as a substitute for properly addressing the existing enforcement position. This was ground 1 of the successful challenge.

Plans, garage conditions and the description of development

Ground 2 succeeded because substantial inconsistencies between the approved drawings and the physical position made it irrational to regard the 2018 scheme as implementable in the way suggested. Ground 3 concerned the omission from the variation of a condition restricting the garage to incidental use and prohibiting habitable accommodation. The authority could not rely on permitted development rights under Part 1 Class E as an answer where the garage itself had not been built under those rights.

Ground 4 succeeded because the decision purported to attach conditions to development that was itself unauthorised rather than properly varying the conditions of the operative permission. Ground 5 addressed the limits of section 73 following Armstrong and Finney. Although section 73 is not limited to minor material amendments, it cannot change the operative description or grant of permission. The additional reference to lighting was not immaterial in the setting of this case.

Conservation advice and unclear lighting conditions

The challenge to the absence of renewed consultation with the conservation specialist failed on ground 6. Lane J regarded that issue as a matter of planning judgment on the facts. Ground 7 succeeded, however, because the lighting requirements in the conditions and drawings remained materially unclear and in tension with one another.

Outcome and practical application

The approved judgment records that the claim succeeded on grounds 1 to 5 and 7, but not ground 6. The case does not establish that every section 73 amendment or every as-built departure is unlawful. It shows why authorities and applicants must identify an existing, legally operative permission, establish whether it has been lawfully commenced, and make the intended variation without rewriting its operative grant.

Planning Geek holds the complete 15-page approved judgment for this case. Gold members may access the protected original below.