R (on the application of Fulford Parish Council) v City of York Council [2019] EWCA Civ 1359

1. Mr Garvey contrasts section 73A with section 96A which contains no wording expressly permitting a retrospective amendment. In the present case, he says, the planning permission, taken as a whole, has been implemented. It follows, therefore, that the power under section 96A cannot be exercised. I do not accept this argument. When a successful application is made under section 73A, it results in the grant of planning permission which did not exist before. In the present case, the planning permission (taken as a whole) has already been granted. The effect of the exercise of the power conferred by section 96A is merely to make a non-material amendment to an existing planning permission. The two sections are, therefore, concerned with entirely different circumstances.
2. One of the purposes of section 96A was surely to formalise minor differences between, say, approved layout plans and “as-built” development. In days gone by this used to be dealt with informally by planning officers; and principles of private law (such as estoppel) would be relied on to validate their representations (e.g. Lever Finance Ltd v Westminster CC [1971] 1 QB 222). But that possibility was, for all practical purposes, brought to an end nearly thirty years later by the House of Lords (R (Reprotech (Pebsham) Ltd) v East Sussex CC [2002] UKHL 8, [2003] 1 WLR 348). So a statutory power to achieve the same results was needed; and in my judgment section 96A fills that gap.
3. But in any event, on the facts of this case, I am not persuaded that the power is being used retrospectively. The bat mitigation strategy has yet to be put in place; at least fully. Although it is true that the planning permission has been “implemented”, all this means is that development has begun; so as to comply with the time limit imposed by section 92. It does not mean that the whole of the permitted development has been “carried out” as that expression is used in section 73A.