Case No: QBCOF 1999/1210/C
 
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HON. MR. JUSTICE DYSON
Royal Courts of Justice
Strand, London, WC2A 2LL

Friday 19 May 2000

B e f o r e :

LORD JUSTICE MORRITT
LORD JUSTICE SCHIEMANN
and 
LORD JUSTICE POTTER
- - - - - - - - - - - - - - - - - - - - -

	POWERGEN UK plc		Appellant	
	- and -		
	LEICESTER CITY COUNCIL 
and
SAFEWAY STORES PLC   (2nd. Respondent)                       	Respondent	

- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040,  Fax No:  0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
MR. JOHN TAYLOR Q.C. & MR. VINCENT FRASER (instructed by  Wragge & Co. Birmingham, B3 2AS for the Appellants)
MR. DUNCAN OUSELEY Q.C. & MR. MICHAEL REDMAN (SOLICITOR ADVOCATE) (instructed by  Clifford Chance London, EC1A 4JJ for Safeway Stores plc)
MR. TOBIAS DAVEY  (instructed by  Anthony Cross Asst. Head of Legal Services for Leicester City Council)
- - - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Schiemann:
1.	Introduction
	This appeal by developers raises two points specific to its facts and one  point of some 	general importance in relation to the scope of the powers given to a local planning 	authority on an application made under s.73 of the Town and Country Planning Act 	1990 for a planning permission subject to conditions different from those which	were applied to an earlier planning permission in respect of the same land. Such an 	application is commonly referred to as an application to modify conditions imposed 	on a planning permission. 

2.	The background to the present dispute lies in s.92 of the Town and 	Country Planning 	Act 1990. That section was enacted to prevent the accumulation of unimplemented 	permissions. That is undesirable because, when further planning decisions have to be 	made in relation  to an area, it is a help to good planning not to be inhibited by past 	grants of permission. On the other hand, landowners clearly must have some time in 	which to implement grants of permission. The section is a compromise between these 	two desiderata. It is convenient to set out parts of the section because it forms the 	background to much of the argument.
(1) .... “outline planning permission” means planning permission granted ..... with the reservation for subsequent approval ..... of matters not particularised in the application (“reserved matters”).
(2) ...... where outline planning permission is granted ....... it shall be granted subject to conditions to the effect-
(a) that, in the case of any reserved matter, application for approval must be made not later than the expiration of three years beginning with the date of the grant of outline planning permission: and
(b) that the development to which the permission relates must be begun not later than-
(i) the expiration of five years from the date of the grant of outline planning permission; or
(ii) if later, the expiration of two years from the final approval of the reserved matters or, in the case of approval on different dates, the final approval of the last such matter to be approved.
(3) If outline planning permission is granted without the conditions required by subsection (2), it shall be deemed to have been granted subject to those conditions.
(5) [the authority concerned with the terms of an outline planning permission] may also specify ..... separate periods under paragraph (a) of  subsection (2) in relation to separate parts of the development to which the planning permission relates; and, if they do so, the condition required by paragraph (b) of that subsection shall then be framed correspondingly by reference to those parts, instead of by reference to the development as a whole.

3.	On the 25th January 1995 Leicester City Council (“LCC”) granted 	outline planning 	permission for “Redevelopment of site for retail use (Class A1), Business use (Class 	B1) Petrol Filling Station (Sui Generis), Public House/Restaurant (Class A3) and 	Public open space” on a site of approximately 15 hectares. I shall refer to this as the 	Total Site.

4.	The Total Site is the site of a former power station.  In reliance upon  the grant of 	planning permission Powergen have undertaken the 	demolition of the power station, 	remediated the whole site, decontaminated the site, constructed a road-link and paid 	LCC a licence fee at a total cost of £5.7 million.  The preparation of the site for 	development involved a time consuming process longer than was anticipated at the 	time planning permission was applied for. 

5.	The planning permission was subject to 25 conditions which,  however, did not 	include a condition on the lines suggested by s. 92(5). Condition 1 provided that:-

Application for approval of reserved matters shall be made within 3 years from the date of this permission and the development shall be begun not later than:

(a)   5 years from the date of this permission; or
(b)   if later, 2 years from the date of the final approval of all the reserved matters.

6.	The reason given for this condition was “to comply with section 92 of  the Town and 	Country Planning Act 1990”. 

7.	Condition 2 provided that :-

Detailed plans and particulars of the siting, design, external appearance and a means of access to the development, and the landscaping of the site (referred to in condition 1 as reserved matters) shall be submitted to and approved by the City Council as Local Planning Authority before the development is begun and shall have regard to:

(a)   the size and height of the development including details of the materials to be used on all external elevations and roofs;
(b)   the provision of necessary footway crossings;
(c)   a landscaping scheme showing the treatment of all parts of the site to remain unbuilt upon, and including:
(a)   details of the position and spread of all existing trees, shrubs and hedges to be retained or removed;
(b)   new tree and shrub planting, including planttype, size, quantities and locations;
(c)   means of planting, staking and tying of trees, including tree-guards;
(d)   other surface treatments;
(e)   fencing and boundary treatments;
(f)   any changes on levels;
(g)   the position and depth of surface and/or drainage runs.

8.	The reason given for the condition was “to secure the satisfactory development of the 	site”.

9.	Condition 8 provided:

“If the development is carried out in phases, then the approved landscaping scheme shall also be carried out in phases, each phase of the landscaping scheme to be carried out within one year of  completion of the phase of development to which it relates”

10.	The reason given for the imposition of this condition was “in the interests of 	amenity.”

11.	As I have pointed out, although condition 8 envisages development  possibly being 	carried out in phases, it is clear that the outline permission imposed the conditions 	envisaged in s.92(2) and it did not follow the course indicated in s. 92(5) as a 	possibility.

12.	It will be seen that the effect of these conditions was that
	(1)	No development could be begun until detailed plans of the reserved matters 	had been approved by the Authority
	(2)	Application for approval of the reserved matters had to be made before 
	25.1.1998
	(3)	The development could only proceed if it was begun within the later of the two 	time periods set out in condition 1.

13.	Matters proceeded slowly and it became apparent to Powergen that unless they 	secured a relaxation of conditions they might be unable to develop. Mr. Busby of the 	Authority’s Development Control Group on 26th November 1997 wrote a letter to 	Powergen which included  the following:

“The Council is concerned about what will happen to the rest of the site and whether the remainder will make sense in terms of the overall planning of the site.  This is likely to affect the Council’s consideration of the application unless other reserved matters, e.g. public open space, nature area, footpath and cycle path networks, are submitted at the same time and it can be demonstrated how the proposed supermarket will relate to the remainder of the site.  The deadline for all reserved matters is 24th January 1998 barring some details that could be the subject of planning conditions should permission be granted.”

14.	Mr. Busby wrote again on 19th December saying:

“Reserved matters for the other aspects of the outline scheme should be submitted to agree with the description.  If they are not submitted before 25th January 1998 the outline permission may lapse.”

15.	On the 8.1.1998 Powergen submitted an application for the approval of reserved 	matters pursuant to the planning permission for “83000 sq. foot food superstore and 	petrol filling station with carwash and 585 car parking spaces together with 	landscaping and public open space”.  The land occupied by the development the 	subject of the reserved matters application occupied a substantial part of the Total 	Site.  I shall refer to it as the “Food Store Segment”.

16.	On 12.1.1998 Powergen made an application to extend the time period specified in 	condition 1. That application was refused by the Authority on 15.3.1999 and no 	challenge has been raised to the legal correctness of that refusal or as to the length of 	time taken to arrive at the decision. The policy background justifying the refusal of 	what had previously been permitted in principle was that central and local government 	policies had changed since 1995 and therefore the Authority were anxious not to do 	anything which would permit the outline permission to be implemented.

17.	On 3.8.1998 an application was made which purported to be for a variation of 	condition 2 and for consequential variations of various other conditions. The nature of 	the variation asked for appears from the suggested wording of a new condition 2, 	namely, “Before the development or phase of the development is begun  detailed plans 	and particulars of ….. the development or phase of the development …. 	shall be 	submitted to and approved by …..”. The effect of granting that application would have 	been to enable the “reserved matters” referred to in condition 1 to comprise, not all the 	matters relating to every part of the site, but only those relating to that part of the site 	with which the applicants were at any particular time anxious to proceed. It is 	submitted to be a consequence of this that the application made on 8.1.1998 would 	have been made within the time limit specified in condition 1.

18.	That would have had a number of advantages from the applicants’ 	point of view. 	Legally they would be able to assert that condition 1 had been fulfilled by the making 	of the application for the Food Store Segment. Commercially they would be relieved 	of the pressure to produce plans for and/or to carry out various landscaping measures, 	parking provisions, investigations for archaeological remains or for the protection and 	enhancement of sites of wildlife or other ecological significance.

19.	On the other hand the granting of that application had various disadvantages from the 	point of view of the Authority. In particular it would have enabled the Food store 	development to go ahead although this was by now against the Authority’s policy. It 	would have prevented the Authority from having an overall scheme for the site 	before them before any part of the development took place -– something which they 	obviously thought desirable. It would also remove the cut off date by which the 	authority would know that the permission could no longer be implemented.

20.	On 15th March 1999 LCC refused planning permission for the section 73 	applications. As I have already said, no complaint is made in relation to the refusal of 	the application relating to condition 1. In relation to the application relating to 	condition 2 the refusal was for the following reasons:

	1.   The effect of varying condition 2 would be to allow work to begin on a food 	superstore having reserved matters approval.  That development would be contrary 	to Policy S6 of the City of Leicester Local Plan which states that planning permission	will not normally be granted for additional super-stores in the City.
	
	2.   There is no quantitative need for additional large food stores in the Central 	Leicestershire area.
	3.   The regeneration of the site by development of retail use is in preference to other 	more central sites also identified for regeneration and which have been identified as 	being  available, suitable and viable, could have an adverse effect on the continuing 	investment in the City and other centres by competing for investment.

21.	The Construction of Condition 2
	
	Powergen’s primary submission before Dyson J. and before us was that they have 	complied with condition 1. They submit that the reference in condition 2 to “the 	development” is a reference to “such 	part of the development as the developer 	chooses to proceed with”.  The judge rejected this construction of the permission for 	reasons which he set out in full. He rejected Powergen’s submission that such a 	construction of the permission produced a result which was commercially absurd 	because, there being no obligation to carry out all of the development, it was pointless 	for the company to produce, and for the Council and its officers to consider, plans for 	development which there was no present intention to carry out.

22.	It is plain from an examination of s.92 that, absent any specification of separate 	periods under subsection (5),  in that section “reserved matters” refers to every matter 	reserved by the outline planning permission for subsequent approval of the authority 	and “development” refers to the development as a whole. Either the permission 	granted by LCC echoes the section faithfully or conditions having that effect are to be 	implied - see s.92(3). In those circumstances the resolution of the construction point 	may not matter.  However, I agree with Dyson J. for the reasons which he set out in 	full, that construing this permission in its context it is clear that throughout the 	document development refers to the development of the whole.

23.	The effect of dealings between the parties

	Powergen’s secondary submission was to the effect that by reason of the dealings 	between the parties they are entitled to implement that part of the outline permission 	which relates to the retail development.  This submission turns on the details of the 	dealings between the parties and whether these gave to Powergen any legal rights to 	proceed with the building of the Food Store without further permissions. The Judge 	held that the officers, whose words were relied upon as preventing the authority from 	now taking any point in relation to time, had neither actual nor ostensible authority to 	make representations to that effect and rejected an argument to the effect that the 	doctrine of legitimate expectation entitled Powergen to such rights. He went on to 	hold that the words relied on could not give rise to the expectation asserted and that in 	any event they had not been relied on. I agree with the reasoning and conclusion of 	Dyson J. that on the facts of this case it is not possible to show that the doctrine of 	legitimate expectation operates so as to entitle Powergen to proceed to build the Food 	Store.

24.	The scope and character of the powers given by s.73

	Introduction

	Powergen submit that the decision in relation to condition 2 is legally  flawed because 	the Authority were not permitted to refuse that application for the reason which they 	gave. Before turning to the law, I should note the following additional matters of fact.

25.	In May 1998 LCC resolved to approve the reserved matters which had been submitted 	on 8.1.1998 in relation to the Food Store Segment.  In recommending approval of the 	reserved matters application LCC’s Director of Environment and Development 	advised that an indicative lay-out had been submitted by the applicants in relation to 	what I shall call the Remaining Segment. He stated that whilst this particular block 	layout would probably not be acceptable in that form, the final form of development 	(which would be the subject of a separate planning application) was in his view 	capable of meeting the general requirements of the planning brief and that the design 	of the super-store and the general lay-out were satisfactory.

26.	On 4th January 1999 LCC resolved to grant planning permission for some, but not all, 	of the Remaining Segment to be developed as Offices, Restaurant and Public House. I 	assume that at some time a full planning permission in respect of this part of the 	Remaining Segment was issued.

27.	The Legal Background
	
	Section 73 of the 1990 Act provides:

1.  This section applies, subject to sub-section (4), to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted.

2.   On such an application the Local Planning Authority shall consider only the question of the conditions subject to which planning permission should be granted, and
	(a)   if they decide that planning permission should be granted subject to conditions 	differing from those subject to which the previous permission was granted, or that it 	should be granted unconditionally, they shall grant planning permission accordingly; 	and 
	(b)   if they decide that planning permission should be granted subject to the same 	conditions as those subject to which the previous permission was granted, they shall 	refuse the application.

4. This section does not apply if the previous planning permission was granted subject to a condition as to the time within which the development to which it related was to be begun and that time has expired without the development having been begun.

28.	Some preliminary points

	The background to this section was considered by Sullivan J. in his judgment in Pye v 	Secretary of State for the Environment [1998] 3 PLR 72. Sullivan J. said the 	following:-

“An application made under section 73 is an application for planning permission:  see section 73(1).  The Local Planning Authority’s duty in deciding planning applications is to have regard to both the development plan, which brings into place section 54A, and to any other material considerations:  section 70(2).

In general terms, the practical consequences of imposing a condition on a grant of planning permission must be a material consideration that a Local Planning Authority should consider, unless prevented from so doing by some other express provision in the statutory code.

.................Prior to the enactment of (what is now) section 73, an applicant aggrieved by the imposition of the conditions had the right to appeal against the original planning permission, but such a course enabled the Local Planning Authority in making representations to the Secretary of State, and the Secretary of State when determining the appeal as though the application had been made to him in the first instance, to “go back on the original decision” to grant planning permission.  So the applicant might find that he had lost his planning permission altogether, even though his appeal had been confined to a complaint about a condition or conditions.

It was this problem which section 31A, now section 73, was intended to address.......

While section 73 applications are commonly referred to as applications to “amend” the conditions attached to a planning permission, a decision under section 73(2) leaves the original planning permission intact and un-amended.  That is so whether the decision is to grant planning permission unconditionally or subject to different conditions under paragraph (a), or to refuse the application under paragraph (b), because planning permission should be granted subject to the same conditions.

In the former case, the applicant may choose whether to implement the original planning permission or the new planning permission; in the latter case, he is still free to implement the original planning permission.  Thus, it is not possible to “go back on the original planning permission” under section 73.  It remains as a base line, whether the application under section 73 is approved or refused, in contrast to the position that previously obtained.

The original planning permission comprises not merely the description of the development in the operative part of the planning permission.....  but also the conditions subject to which the development was permitted to be carried out.........

Considering only the conditions subject to which planning permission should be granted will be a more limited exercise than the consideration of a “normal” application for planning permission under section 70, but as Keene J. pointed out, at page 207 of the Frost case, how much more limited will depend on the nature of the condition itself.  If the condition relates to a narrow issue, such as hours of operation or the particular materials to be employed in the construction of the building, the Local Planning Authority’s consideration will be confined within a very narrow compass.

Since the original planning permission will still be capable of implementation, the Local Planning Authority, looking at the practical consequences of imposing a different condition as to hours or materials, will be considering the relative merit or harm of allowing the premises to remain open until, say, 10 o’clock rather than 8 o’clock  in the evening, or to be tiled rather than slated.

Equally, if an application is made under section 73 within the original time limited for the submission of reserved matters, while implementation of the planning permission is still possible and is not precluded by the provisions of section 93 (4), for a modest extension of time for the submission of reserved matters, the Local Planning Authority’s role in considering only the question of conditions subject to which planning permission should be granted will be more confined than in a normal section 70 case.  The practical effect of submitting details one year later than would otherwise be allowed may be very limited.

In my view, however, the position is different where.... an application is made under section 73 to alter a condition, so as to extend the period for submission for reserved matters at a time when the original planning permission is no longer capable of implementation by reason of the effect of section 93 (4), because time for submission for reserved matters has expired.

While the Council are constrained to consider only the question of the conditions subject to which planning permission should be granted, in deciding whether to grant a planning permission subject to different conditions under paragraph (a), or to refuse the application under paragraph (b), are they required to ignore the fact that the original planning permission is no longer capable of implementation, so that if they adopt the latter course it will not be possible for the development to take place, whereas if they adopt the former course, it will be possible for the development to take place?

In my view, there is nothing in section 73 that requires the Local Planning Authority to ignore the practical consequences generally of imposing a different condition, and this is surely a most important practical consequence of granting an application for planning permission under paragraph (a) or refusing the application under paragraph (b),

It may well be that the case since the original grant of planning permission, the arguments for carrying out development have strengthened...........

[sc. in such circumstances] Granting a planning permission subject to a condition providing for an extended period for submission of details would enable the development to be carried out, whereas as refusing the application would mean that a permission for a much needed building could not be implemented.

I do not see why, in such circumstances, the Council, in considering the application under section 73, should be required to shut their eyes to those practical consequences.  If that is correct, I do not see why the position should be any different if the planning policies have changed since the grant of the original planning permission so that its implementation has become less desirable in planning terms.

The Local Planning Authority have to have regard to the factual circumstances as they exist at the time and to have regard to the facts that exist at the time of their decisions.  If at that time the original planning permission is incapable of implementation by reason of section 93 (4), I can see no basis in the statutory code for requiring the Local Planning Authority to ignore that important fact.

Much less do I see any justification for requiring the Local Planning Authority to base their decision upon a hypothesis: comparing the merits of development proceeding now with the merits of its having proceeded at some time in the past when it is known that the hypothesis does not accord with  reality.

29.	I express my concurrence with what is there said.

30.	Subsection (4) indicates that the section clearly does not apply where the application 	purportedly made pursuant to it is made at a time when development had not been 	begun within the time specified by a condition. However, what is the position where 	the application is made in time but the consideration by the authority of that 	application  is after the expiry of time? Does the Authority lose jurisdiction by reason 	of the expiry of time? In my judgment, based in part on the use of the verb “apply” in 	both subsections (1) and (4), the crucial time is the time of the application and there is 	no subsequent loss of jurisdiction to consider the matter. We have heard no 	submissions to the contrary.

31.	The question can arise whether, on an application which asks for a 	variation of one 	particular condition, the authority can grant a new permission subject to a number of 	conditions which were not the subject of the application to vary. Mr Taylor submitted 	that a proper reading of subsections (1) and (2) of s.73  led to the conclusion that only 	the condition the subject of the application was to be the subject of consideration by 	the authority. I disagree. Just as on an application for permission to carry out a 	development the authority can impose conditions on a permission for development 	which they would find objectionable unless such conditions were imposed, so on an 	application to carry out development without complying with one condition the 	authority can impose a different new condition or a number of new conditions and/or 	remove another condition subject to which the earlier permission was granted. An 	example given by Mr Ouseley Q.C., who appeared for the second respondent, was a 	situation where a retail operator wished to have deliveries for longer hours than was 	permitted under the original permission. In such circumstances the Authority might be 	content to grant this but only on condition that the warehouse was sited further away 	from nearby 	dwellings than had been regarded as acceptable at the time of the 	grant of the original permission. 

32.	Submissions and Conclusions

	Mr John Taylor Q.C., who appeared for Powergen, drew attention to the opening 	words of s.73(2)
… the Local Planning Authority shall consider only the question of the conditions subject to which a previous planning permission was granted.

33.	He submitted that these words had the result that an authority faced with a s.73 	application was not allowed to refuse it just because it now disapproved of a 	permission which it or the Secretary of State had granted in respect of the land on an 	earlier occasion. To refuse for such a reason would be to exercise the power of refusal 	for an impermissible purpose, namely, to prevent, without paying compensation, the 	implementation of a permission which had been lawfully granted.

34.	He pointed out that s.73(2)(a) contemplated the grant of unconditional planning 	permission, submitted that this would conflict with the requirements of s.91 and 92 of 	the Act as to time limits and submitted that therefore the permission granted pursuant 	to s.73 must in some way relate to the earlier permission.

35.	He submitted that to construe s.73 as envisaging the grant of an independently viable 	permission would produce absurd results in 	situations where details had already been 	approved under the earlier outline permission. They would need to be submitted and 	approved afresh under the later permission. In such circumstances there would be no 	advantage in making a s.73 application rather than starting afresh.

36.	He argued that if each permission pursuant to a s.73 application were to be regarded as 	an independently viable permission then the time limits for submission of reserved 	matters and commencement of  development would start afresh.

37.	He submitted that the Frost and Pye cases to which I have already adverted were cases 	where what was sought was an extension of the period within which something had to 	be done whereas the present, in form at any rate, was not.

38.	These are powerful arguments and they were skilfully put. 	Nonetheless, I am not 	persuaded by them. The purpose behind the 	imposition of time limits in sections 91 	and 92 is to enable the Planning Authority and others to know what outstanding 	permissions  are capable of implementation and which, if I may borrow a term from 	food retailing, have reached their expiry date. That expiry date can be reached in one 	of two ways – the expiration of the time within which application for details must be 	made or the expiration of the time within which the development must be begun. In 	the uncertain world of planning that at least limits the amount of uncertainty and 	provides a basis on which  decisions have to be reached as to what is to happen to that 	land and land nearby in the future. There is no doubt that the effect of granting a new 	planning permission in the terms sought by the appellants would be to enable a 	development to proceed after the expiry date of the permission. The appellants accept 	the legal correctness of the Authority’s refusal to extend the time period specified in 	condition 1 of the earlier permission. They argue that they should be allowed to 	achieve substantially the same end by altering the terms of condition 2. In my 	judgment that would clearly 	fly in the face of the policy behind sections 91 and 92.

39.	That would not dispose of the point if the words in s.73(2) “shall consider only the 	question of the conditions subject to which a previous planning permission was 	granted” clearly prevented the Authority from taking into account the fact that the 	earlier permission had reached its expiry date. I do not consider that they do. My 	reasoning is essentially the same as that of Sullivan J. in the Pye case set out above. I 	accept that there the court was concerned with an application in terms to extend the 	time for submission of details whereas in the present case the court is only concerned 	with an application which has that effect, This however seems to me to be a 	distinction of no significance. If Sullivan J.’s reasoning is correct, as I think it is, then 	it must apply to both situations.

40.	I accept that s.73(2)(a) contemplates the grant of an unconditional 	planning 	permission but I do not accept Mr Taylor’s submissions to 	the effect that therefore it 	is wrong to regard a permission granted pursuant to a s.73 application as not being an 	independently viable 	permission because of any application of sections 91 and 92. 	Those sections also contemplate the grant of unconditional permissions and provide 	that if permission is granted unconditionally then it shall be deemed to have been 	granted subject to time conditions.

41.	Nor do I accept his argument in relation to having to resubmit details which had 	already been approved. Sometimes the alteration of a condition which is asked for will 	involve alterations as to previously approved details, sometimes it will not. In those 	cases where it does not there is no difficulty in referring to the old plans and it may 	well be that the Authority will be inhibited by the opening words of s.73(2) from 	considering their merits.

42.	The most seductive way in which Mr Taylor put his submissions was to my mind as 	follows. He submitted that the Authority must focus on the condition mentioned in the 	application (“condition x” - in the present case condition 2) and ask themselves “were 	we to substitute condition y for condition x what harm would result which does not 	result from the grant of permission with condition x?”. I agree that, if it does not now 	matter from a planning point of view whether the future development of the site is 	governed by condition x as imposed on the old permission or condition y as suggested 	by an applicant, then the authority would be wrong to refuse permission just because 	they objected to the development in principle. An example might be a proposed 	change in the fenestration in a building. 

43.	But Mr Taylor’s formulation of the question subtly conceals that in the present case it 	does matter. The comparison is not between the present effects of condition x imposed 	now and the present effects of condition y imposed now but rather between the 	present effects of condition x imposed years ago and the present effect of condition y 	imposed now. Once it is clear that this is the right comparison, then it is obvious that 	in a case such as the present the difference is enormous. The present effect of 	condition 2 imposed years ago is to 	prevent the Food Store Development going 	ahead whereas the present effect of a permission containing the proposed condition 2 	is to permit the Food Store development. It is in my judgment beyond argument that 	current planning policy and facts must be taken into 	consideration when deciding 	whether or not to permit that new effect. 

44.	Mr Taylor had a further argument based on events after the expiry 	date in January 	1995. He submitted 
	(a) that no condition should be imposed unless its imposition serves some planning 	purpose; 
	(b) that the purpose of imposing condition 2 on the 1995 Permission was to secure the 	approval of the Authority for the details of the development of the Total Site;
	(c) that this purpose had been achieved by 15.3.1999, albeit in two 	bites, namely, (1) 	the approval of the details for the Food Store Segment in May 1998 pursuant to the 	application made on 8.1.1998 and (2) the resolution of 4.1.1999; and 
	(d) that in those circumstances it was irrational on 15th March 1999 to refuse to vary 	the old condition 2.

45.	I accept of course that conditions should not be imposed unless their imposition serves 	some planning purpose. However, as it seems to me one of the purposes of the 	imposition of conditions 1 and 2 on the 1995 permission, required as it was by s.92,  	was to secure a situation in which no development should proceed under that 	permission unless, amongst other things, application pursuant to the 1995  Permission 	for approval of all of the reserved matters in relation to the Total Site was made before 	25.1.1998. That purpose had not been achieved by 15.3.1999 for three separate 	reasons. One is that the application for planning permission which produced the 	resolution of  4.1.1999 did  not as a matter of fact cover the Total Site. The second is 	that this application was, I believe, not made before 25.1.1998. The third is that it was 	not an application for approval of details under the 1995 permission. The Authority on 	4.1.1999 was dealing with an 	application to grant a new full planning permission. In 	considering that application it was bound to look primarily at the Remaining Segment 	which was the subject of this new application and also to bear in mind that the 	outline permission which had been granted in 1995 for the Total Site was no longer 	capable of implementation. The conclusion reached by the Authority on the 	application which resulted in the resolution of 4.1.1999 is not necessarily the same as 	the one it would have reached on an application for approval of details under the 1995 	outline permission for the Total Site.

46.	At times Mr Taylor I think came close to submitting that it was irrational of the 	Authority to refuse the s.73 application in respect of condition 2. If that was his 	submission I would reject it. When the authority came to consider the application 	under s.73 to grant a new permission in respect of the Total Site subject to a different 	condition 2 it was perfectly rational to refuse to do so. It might well have been 	rational to refuse to do so in 1995 but it was certainly rational to refuse to do so in 	1999 when planning policies had changed. The original conditions were imposed in 	pursuance of the policy set out in s.92 of the Act which is to prevent the accumulation 	of unimplemented permissions. The application under s.73 was clearly designed to 	achieve a result which would be at variance with that policy. There is nothing 	irrational in an authority refusing, after the 	expiration of the 3 years referred to in 	s.92(2)(a),  to grant such an  application in circumstances where the relevant policies 	have altered. 	Indeed, in my view, in present circumstances to have granted a 	permission pursuant to an application under s.73 without considering that a Food 	Store Development was now governed by different policies from those which 	appertained in 1995 would have been just as unlawful as granting such a permission 	following a normal application for full planning permission without such a 	consideration of current policies.

47.	I agree with Sullivan J. that when considering whether or not to grant planning 	permission for the development of land without complying 	with conditions subject to 	which a previous planning permission was 	granted the authority must take into 	account the provisions of the development plan and any other material considerations. 	If one asks “material to what?” the answer is material to the application under 	s.73. Thus, for instance, if the application is to retain a use of land  without complying 	with a condition imposed on a previous permission that the use should cease after five 	years it must be right to examine that application in the light of facts and policies as 	they are at the time of the decision on the new application. 

48.	In the result, for reasons which are substantially those well set out by Dyson J. in his 	judgment, I would dismiss this appeal.

Lord Justice Potter :- I  agree

Lord Justice Morritt:- I also agree

Order:

(1)	Appeal dismissed with costs
(2)	Leave to House of Lords refused.

(Order does not form part of the approved judgment)