Over Taylor Biggs

The Co-Op argued that a provision within the permission allowing the local planning authority to agree variations to floor space was unlawful and the planning permission was therefore invalid.

The High Court dismissed the Co-Op's application to quash the permission as a whole but held that the part of the condition allowing variation to floor space was unlawful.  It should be removed from the permission, as it allowed development to take place that was very different to that which had been applied for and for which permission had been granted.

 Variations to planning permissions have always proved problematic.  Section 73 Town and Country Planning Act 1990 allows an application to be made for permission to carry out a development without complying with some or all of the conditions.  In 2002, the Court of Appeal held that the scope for varying or discharging a planning condition must be operated in an extremely limited way.  It was not a matter to be agreed simply between the developer and the local planning authority but was a public issue.  The Planning Act 2008, yet to be brought into force in this regard, does provide a power to change planning permissions if the local planning authority is satisfied that a change is not material.

The Co-Op argued that the part of the condition allowing agreed variations (referred to as "the tailpiece") meant that the whole planning permission was invalid on the basis that it was uncertain.  There was some debate over whether the areas specified in the planning condition itself might be contradictory, as the planning application had referred to a net sales area of 2,403m² against 2,919m² referred to in the permission itself.  However, by looking at the permission in the context of a supermarket and its facilities, the Court felt the difference between the two areas was explicable because the gross area mentioned would encompass staff facilities, administration offices, storage, food preparation areas and other areas needed to operate the supermarket, to which the public would have no access.  Removing these left a difference in area that was not significant.

However, the tailpiece would need to be removed.  If it were included, the condition as a whole would be unlawful.  There was sufficient authority from earlier cases to say that a power to excise part was available.  The tailpiece was said to be linguistically severable.  If removed, the planning condition required no further amendment or insertion of other words to make sense of it from a linguistic and planning perspective.  The excision prevented the local planning authority doing something that would have been unlawful to do anyway.  The tailpiece was never referred to in the Planning Officer's Report or in debate.  It only emerged in the final planning permission when the Officer of the local planning authority, under delegated powers, issued the permission.

It is likely that once Section 190 Planning Act 2008 comes into force, debates such as these will not recur. Having flexibility to make changes to planning permissions is important, particularly to developers.  However, the limited scope, confirmed by the Court of Appeal in 2002, made local planning authorities extremely cautious about agreeing variations.  This case demonstrates that certain variations can be permitted and the decision has given some guidance as to the very limited scope that exists to achieve it.

R (on behalf of Midcounties Co-Operative Limited) v Wyre Forest District Council 2009