- seeking justice
Alleged unlawful amendment in 2002
The original Notice of Decision, issued on 31 October 2000 stated:
"The development must begin not later than the expiration of three years from the date of this permission.
Reason: To conform with the requirements of Section 91 of the Town and Country Planning Act 1990."
As the development commenced after the date by which the condition required development to begin, it appeared that the development should have been treated as not authorised by the permission. Accordingly, the matter of planning permission expiry has been queried with Newport council for some time – most recently during an exchange of letters in connection with an objection to the discharge of Condition 07 to the original planning consent.
Eventually, in a letter dated 15th February 2010, Newport Council’s Development Control Manager admitted that the Notice of Decision had been “re-issued” in 2002 to extend the time limits of the original Standard Condition. An extract from the letter follows:
"In June 2002 an agent acting for potential residential developers on the site queried the standard condition that had been applied to the Notice issued in 2000 on the basis that it was incorrect. The Local Planning Authority considered the enquiry and advised that section 92 of the Town and Country Planning Act 1990 includes a deemed condition for outline planning permissions in the form of the condition cited by me above. This had not been replicated on the Notice. Instead, an alternative condition had been included in error that appeared to shorten the period for commencement of development. It was confirmed at the time that this was unintentionally included on the decision notice as no considerations relating to the proposals would have led to the normal time period being amended. The agent was advised to this effect and was advised that the Authority considered that it could substitute alternative periods of time into the deemed condition without prejudicing its decision.
A decision was taken by the then Development Control Manager to re-issue the Notice of Decision for 00/0768 on the basis that the Local Planning Authority had made an administrative error in the Notice. To avoid any dispute over the decision falling back on the deemed condition at section 92 and as there was no resolution as part of the consideration and determination of the application to shorten the periods identified at section 92, the Notice of Decision should accurately reflect the requirements imposed by the Act. It was considered that the Council’s decision was not prejudiced by the changes, which simply corrected an error.
The Notice of Decision that you have in your possession is the superseded Notice. The Notice was corrected in 2002 to comply with Section 92 of the Act and was re-issued. I enclose a copy of the correct Decision Notice for your information”
The Notice of Decision that had been amended and re-issued in 2002 was, as with the original decision notice, also dated 31 October 2000 and made no mention of the changes made to the Standard Condition. It appeared that the amendment had been made 'behind closed doors' then camouflaged by making the re-issued Notice of Decision appear like an original Notice of Decision.
The original decision notice had been correctly made out, checked, and issued by Newport Council, to Newport Council. Council officers did not have the power to amend the conditions of the original planning permission or, therefore, to 're-issue' the Notice of Decision.
Given the speed at which Newport Council desired the project to proceed, the intent of the original Notice was neither ambiguous nor unreasonable. On the other hand, the changes made in 2002 were significant and material. The actions taken by Newport Council officers to amend the planning permission and ‘re-issue’ the Notice in 2002 were neither reasonable nor in the public interest – there being more appropriate and more transparent methods for correcting genuine administrative ‘errors’, such as requiring a new planning application to be submitted.
The advantage to Newport Council was clear. By not requiring a new planning application, Newport Council could circumvent the need for an EIA screening exercise, as a new planning application for this development would necessarily require the application to be screened for EIA.
According to a paper by North Lincolnshire Council, in the case of Henry Boot Homes Ltd v Bassetlaw District Council, it was held that the planning authority was wrong in approving anything as a minor amendment, save the ‘smallest of small amendments’. In the case of Powergen UK plc v Leicester City Council, one of the law lords observed that ‘compliance with a planning permission is not a matter for private agreement between developers and local planning authorities’.