A new judgment handed down by the Court of Appeal has put the relationship between sections 73 and 73A of the Town and Country Planning Act 1990 in a new light.
In Lawson Builders Ltd v Secretary of State for Communities and Local Government  EWCA Civ 122, Pitchford LJ, giving the leading judgment of the court, held that in an appropriate case, a decision-maker considering an application under s. 73 of the TCPA 1990 for planning permission without complying with conditions attached to an existing permission, could grant, under s. 73A instead, retrospective permission for a development already carried out without it usually being necessary to forewarn the applicant of this.
In a factually complex case, a company had built two houses in breach of conditions attached to a 2004 planning permission. In 2009, the company applied under s. 73 for a new permission without those breached conditions. On appeal in 2010, an inspector granted a new planning permission but, noting that the properties had already been substantially built, attached new conditions requiring related works to be approved and completed within a short timeframe.
The company then applied for lawful development certificates, claiming that any breach of the 2004 permission was now immune from planning control on the 10-year rule. The local authority concluded that it was necessary to comply with the conditions of the 2010 permission in respect of one of the houses. The company appealed again. An appeal inspector in 2012 concluded that the 2010 permission was, in substance, a retrospective grant of planning permission under s. 73A even though (i) the 2010 inspector’s decision letter did not state this explicitly; and (ii) the applicant had purported to make his application under s. 73, not s. 73A. The inspector therefore agreed with the Council that the house in question was subject to the conditions of the 2010 permission.
Supperstone J rejected the company’s challenge to the 2012 inspector’s decision in the High Court. Pitchford LJ has now upheld that judgment in the Court of Appeal. Responding to submissions made on behalf of the Secretary of State that there was a fluidity between the powers in sections 73 and 73A that earlier authorities on these provisions had perhaps overlooked, Pitchford LJ said this:
“27. Once it is understood that any grant of planning permission consequent upon this application had to be retrospective in its effect, it is clear that the power to make the grant was derived from section 73A TCPA. Section 73A(1) provides that on “an” application for planning permission, the permission granted may “include” permission in respect of development that has already been carried out. By subsection (2) retrospective permission may embrace development carried out (a) without planning permission, or (b) subject to time-limited permission, or (c) in breach of conditions imposed on a previous planning permission. Section 73A creates a general power to grant planning permission retrospectively. Here the development had taken place in breach of a pre-condition attached to a previous permission. I agree with the judge that there is no question of the inspector “re-classifying” the application made by the first appellant. It was implicit that if the appeal from the refusal to grant permission was to be successful the source of the power to grant permission came from section 73A. It was unnecessary for the inspector to spell out the source of his power to grant the permission sought provided that the power existed.”
Davis and Lewison LLJ agreed.
Gwion Lewis was sole Counsel for the Secretary of State in the Court of Appeal and in the High Court below.