Following
Finney and Welsh Ministers v Energiekontor (UK) Limited and others
[2019] EWCA Civ 1868 everyone has, I'm sure, thought more
about the appropriateness of when to use a s73 application. It has
recently been put to me by one of my local LPAs that removing an
agricultural occupancy restriction from a dwelling, to create a
dwelling with unrestricted occupancy, would result in a fundamentally
different development to what was originally approved, as the
description in the original application referred to "agricultural
worker's dwelling" and that is fundamentally different from an
open market dwelling. I have disagreed, as I feel that what was
applied for was a dwelling and what the s73 if approved would allow is
a dwelling. The "agricultural worker's" element of the
description is purely illustrative of why the dwelling should be
allowed, and that if no occupancy condition had been imposed then no
occupancy restriction could be deduced or enforced from the term
having been used in the description.
There is a policy in the Local Plan relating to AWDs, the final
paragraph of which states "Applications for the removal of
occupancy conditions or ties on dwellings for rural workers will only
be permitted where there is compelling evidence to demonstrate that
such a restriction is no longer justified". This to my mind
suggests that s73 is appropriate, as it caters for exactly what the
policy provides for, rather than any sort of change of use, which
would presumably be what is required if the development is
fundamentally different.
The LPA has agreed to seek independent legal advice, but it would be
instructional to know if this issue has arisen in other areas, and if
so, how it has been resolved.
A final thought is - would the same argument apply to removing a
holiday occupancy condition - or is that fundamentally different again?
