Development Control Casebook: Housing: New Build - Legal advice lands authority with costs

In allowing an appeal seeking renewal of permission for seven apartments at a site on Teesside, an inspector has concluded that the council's legal and procedural objections are unfounded.

The appellants submitted an application under the Town and Country Planning (General Development Procedure) (Amendment No 3) (England) Order 2009, which allows applications to replace extant permissions granted on or before 1 October 2009. The council maintained that an application to extend the time limit for implementation is contrary to section 73(5) of the Town and Country Planning Act 1990, which prohibits extending time limits on permissions. The primary legislation overrides the order, it claimed.

The inspector noted that the amendment order inserted article 10B and amended article 4E of the General Development Procedure Order 2009. In combination, he decided that the procedure makes clear that a new planning permission would be created under section 70 of the Town and Country Planning Act 1990. In effect, he held, this created a "new category" of application distinct from section 73(5). The appeal was therefore allowed.

The Planning Inspectorate had explained the correct legal position to the council as part of the appeal process, he noted. While accepting that the council was at liberty to clarify the effects of legislation, he felt that it should have reconsidered its position in the light of clear explanations, national advice on the amendment order and a reasonable reading of the legislation itself. This amounted to unreasonable behaviour which justified the council paying the appellants' costs, he concluded.

DCS Number 100-069-640

Inspector David Cullingford; Written representations

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