Reliance on old consent judged untenable

An inspector has refused to confirm that a development of six shops with flats above in Warwickshire can be implemented as part of a larger scheme, saying it would be an incorrect interpretation of the legal position.

Permission had been granted in 1949 for a substantial mixed development over a wider area including part of the appeal site. No condition had been imposed on commencement of development and a lawful start had been made by building an access road. Parts of the larger area had been developed under later permissions, but the appeal site remained vacant.

The appellants sought a lawful development certificate to confirm that their scheme could proceed under the original permission. They relied on Lucas & Sons Ltd v Dorking and Horley Rural District Council (1964), which held that development of part of a site for housing under a later permission did not prevent the remainder of the land being developed under an earlier permission as long as the land was available.

The inspector found that later developments on land around the appeal site meant the appellants could not comply with conditions imposed on the 1949 permission, including a requirement for a service road to the retail units. He also saw no evidence that required alterations to a filling station entrance could be achieved.

He referred to R v Arfon Borough Council ex parte Walton Commercial Group Ltd (1995), which established that implementing an earlier permission could only be lawful if it was possible to comply with conditions imposed, and to Melap Singh v Secretary of State for Communities and Local Government and Sandwell Borough Council (2010), where it was held that a whole development is unlawful where some parts are physically incapable of implementation.

These rulings applied squarely to the appeal case, he decided. In his view, it would be an artificial interpretation of the law to allow a relatively small part of the original scheme to be implemented in isolation from the remainder that could no longer be built.

Inspector: Kevin Nield; Written representations

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