Fulford Parish Council has appealed against a refusal of permission, to seek judicial review of a planning decision that was made by the respondent local planning authority. Under the Town and Country Planning Act 1990, Local Authorities are allowed to make non-material changes to a planning permission, including the power to make those changes to conditional approvals of reserved matters. Outline planning permission had been granted for a residential development project, that consisted of approximately 700 homes, along with the creation of public open space and community facilities.
Needing the permission of the local planning authority, who in this case was York City Council, this hindered the ability of the Parish Council to prevent the project from going forward; they unsuccessfully attempted to register the site as an historic battlefield, or as a bat mitigation site. At this point, the Local Authority granted approval of reserved matters, subject to approval of a detailed bat mitigation strategy and method statement. They then approved a further application described as "non-material amendments" to alter approved plans, and the bat mitigation strategy.
The planning permission had already been implemented, as the overall scheme of development had begun, and as per the Town and Country Planning Act 1990, the local authority could make changes to any planning permission if they were satisfied that the change was not material. The Parish Council believed that the Act didn't actually empower the local authority to make its decision and that the statutory power was limited to making non-material amendments to a "planning permission", and their approval of reserved matters was not one of these "planning permissions".
The appeal was dismissed by the Court of Appeal (Civil Division), a decision by the Judges. They decided that the granting of planning permission was acceptable in law, and that it was "subject to" conditions, which had to be seen as an intrinsic part of the grant. The conditional approval of reserved matters was itself a condition, subject to which the planning permission had been granted. The Parish Council's argument that there was no power to approve reserved matters subject to conditions was therefore wrong, as the "planning permission" that was referred to consisted of the grant of planning permission together with any conditions to which it was subject (regardless of the time that the conditions were imposed). The application for an amendment to an approval, or a conditional approval, of reserved matters was an application for the alteration of an exiting condition - this was expressly permitted by the Town and Country Planning Act 1990, and was restricted to non-material changes only. There could be no policy objection to the interpretation, because it followed that a change in approved reserved matters could have no material impact.
The Parish Council's argument that the power to approve non-material changes could not be used retrospectively, was rejected. A successful application under the Town and Country Planning Act 1990 resulted in the grant of a new planning permission. In this case, the overall planning permission had already been granted. The overall effect was only to make a non-material amendment to an existing planning permission.
The bat mitigation strategy had yet to be fully put into place - although the planning permission had been "implemented", it only meant that development had begun, just to comply with the time limit. It did not mean that the whole of permitted development had been "carried out". It was therefore deemed unfinished.
