A toothless tiger

An inspector has decided to take no action on an appeal against a condition requiring a passing bay to be provided on the access to two pairs of semi-detached houses in southeast London, finding that there was no extant planning permission (DCS Number 400-021-543).

Permission had been granted for the development on 30 September 2015, subject to a standard three-year time limit condition. On 12 September 2018 the council had refused to remove the passing bay condition. Presumably, the appellant made the assumption that the submission of an appeal against the refusal would stop the clock in terms of planning legislation. Not so, however.

The inspector noted that the appeal was made against the refusal of the council to grant planning permission under section 73 of the Town and Country Planning Act 1990 for the development of land without complying with conditions subject to which a previous planning permission was granted. He recorded that Section 73(4) states: 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. The effect of this, he explained, is that once the standard time limit has passed without the permission being implemented there is no extant permission and so Section 73 does not apply. Consequently, it is not possible to remove or vary a condition attached to a lapsed permission. Furthermore, he recorded, the effect of Section 73(5) is that it is not possible to change a condition by extending the time within which development must be started. Any new planning permission created as a result of a successful appeal under Section 73 should not extend the time period within which the development must start from that set out on the original permission. Instead, the time limit should run from the date of the original permission which would not be possible in the case before him because the planning permission had lapsed.

Therefore, the inspector concluded, while the appeal had been submitted before the lapsing of the planning permission, no further action could be taken on the appeal because the planning permission to which it related had since lapsed.

Which makes the Planning Inspectorate something of a toothless tiger in this type of situation. Plainly, the duration of a permission should not be extended simply as a by-product of a planning application to remove or vary a condition, but when an appeal is made a whole new set of considerations applies. Just a suggestion, but would it be a good idea to draft a Section 73(6), to be inserted into the Act, which would stop the clock whilst such cases are under consideration at appeal?

Section 4.416 of DCP Online concerns the removal or amendment of conditions.