Reversing the ruling of Sir Wyn Williams, the Court of Appeal ruled on 5th November in the case of Finney v Welsh Minsters  EWCA Civ 1868 that it is unlawful to use section 73 of the Town and Country Planning Act 1990 to amend or contradict the description of the development permitted by a planning permission.
The facts of this case were simple. The Applicant was granted permission to install two wind turbines with a maximum height of 100m, which included a condition that the turbines be installed in accordance with a submitted drawing (which, by common ground, showed a turbine with a height of 100m).The description of development referred to the “… installation …. of two wind turbines, with a tip height of up to 100m…”.
The Applicant proceeded to seek an increase in the height of the turbines to 125m, via an application under section 73 to substitute the previously submitted and approved plan. On appeal the Welsh Ministers allowed the application. Sir Wyn Williams, sitting in the High Court, rejected a challenge to that decision which had proceeded on the basis that the inspector had no power to grant permission for development which did not accord with the description in the original permission. In doing so the court followed the judgement of Singh J in R (Wet Finishing Works Ltd) v Taunton Deane BC  EWHC 1837(Admin).
In Wet Finishing Works, it was concluded that it was possible to use section 73 to vary a condition even where this meant the condition conflicted with the description of the development itself. The question was merely whether there was a ‘fundamental alteration’ to the original planning proposal, and that was a matter of judgment for the decision maker within the bounds of rationality.
The Court of Appeal resoundingly came to the opposite conclusion after careful consideration of the legislative history and the previous treatment of section 73 in the courts.
It was stated that “the planning authority cannot use section 73 to change the description of development” and that “a condition altering the nature of what was permitted would have been unlawful”.
The basis of the Court of Appeal decision was that section 73 is only concerned with amending the conditions of a planning permission: the purpose of the section is to give “relief against one or more conditions”. The description may not be considered as part of that exercise. Therefore, the description may not be altered either explicitly or via a condition in a section 73 application.
Finney makes clear that the scope of section 73 is constrained by the description of the development (as permitted by the planning permission which is being varied) and therefore no condition may be varied in a way which alters the scope of the original permission.
Following Finney, it may – in certain circumstances - be advisable to seek planning permission in less specific terms. A description of development which permits, for example, up to x number of dwellings could still be changed via section 73 following Finney, so long as the permitted number is not exceeded. Further flexibility could be achieved by applying for a generic description of development, e.g. “residential development” with quantum to be controlled through planning condition capable of future variation. On the contrary, a development description that is specific to numbers and types will be more difficult to depart from because any number of dwellings which is higher or lower than that permitted would on the face of things be outside the scope of the development permitted.
However, it remains possible that some LPAs will resist more generic descriptions, and will seek to take advantage of what is clearly a more inflexible approach to changing developments via future section 73 applications.
If a description does fall foul of the principle in Finney, then an applicant who wishes to amend a restriction will have to resort to s.96A application (which is only available if the change is non-material) or submit a new application in order to obtain planning permission for a different scheme.
The Court of Appeal noted these two options and considered them to be entirely suitable, but this decision has certainly limited the options available to amend a permission via section 73, which is a popular route for many developers.
Although the position has been clarified, Finney does leave some questions:
- It would appear from the arguments of the Court of Appeal that the inability to use section 73 applications applies as much to a reduction in the scope of the permission as to an increase. This would appear logical where, for example, the LPA may want to place a lower limit on development to ensure e.g. sufficient density of dwellings and efficient use of land, or where the planning benefits have been assessed on a higher quantum of development. However, what is not clear is whether there would be a de minimus argument such that a marginal change would not trigger the Finney principle. It seems illogical that development which has a more limited scope than that permitted should always be regarded as outside the scope of the development permitted.
- Another question is whether this decision would have a wider impact on the submission of reserved matters where the outline permission gives a specific description of development. For example, in connection with residential development schemes (and depending on how the development is described), would reserved matters applications have to be for the precise number of units permitted?
To discuss further, please contact one of Howes Percival’s specialist planning team.
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