Court of Appeal confirms strict application of Section 73

In a judgment handed down yesterday, the Court of Appeal has reversed the High Court's decision in Finney v Welsh Ministers. The effect of the High Court decision had been that section 73 of the Town and Country Planning Act 1990 could be used to vary not just the conditions to a planning permission, but also the description of the development itself. The Court of Appeal has, however, ruled that to vary the description of development is outside the remit of section 73. Whilst this case relates to a development in Wales, the decision is as relevant to English developments as it is to Welsh. So what is the impact?

Arguably it could be surprising that this case needed to go as far as the Court of Appeal. Section 73 of the 1990 Act seems quite clear on the face of it. If a section 73 application is approved, a new planning permission is granted with different conditions to the original permission, which itself remains unchanged. Section 73(2) expressly states that "on such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted". Nevertheless, in Finney, the question was whether section 73 could be used vary the description of the development and the Judge in the first instance decided, having considered previous first instance decisions, that it could.

Finney – High Court decision

In the High Court, Counsel for the claimant argued:

"First, a local planning authority (or inspector upon appeal) is not permitted to vary the terms of the operative part of a planning permission when exercising the power to grant permission pursuant to section 73 of the Act. Second, a planning authority (or inspector upon appeal) cannot, pursuant to section 73, impose a condition which is directly contrary to the terms of the operative part of a planning permission. Third, if, pursuant to section 73, the proposed variation to a condition does not directly contradict the operative part of a planning permission, the local planning authority must nonetheless consider whether the proposed variation would constitute a fundamental alteration to the proposal for which permission had previously been granted and, if so, reject the application under section 73." (Para 33 of the judgment)

However, the Judge, Sir Wyn Williams, did not accept this, deciding that "if accepted, [this would] lead to an over-technical and inflexible approach to the application of section 73 of the 1990 Act".

Finney – Court of Appeal decision

The Court of Appeal has disagreed. Noting that "Section 73 (1) is on its face limited to permission for the development of land 'without complying with conditions' subject to which a previous planning permission has been granted", Lewison LJ ruled that, when considering a section 73 application, a local planning authority "must not, therefore, consider the description of the development to which the conditions are attached. The natural inference from that imperative is that the planning authority cannot use section 73 to change the description of the development".

Impact on developers

So where does this leave a developer who wants to change the description of development?

It boils down to how material the change in the description is. At paragraph 45 of his judgment, Lewison LJ notes that "If a proposed change to permitted development is not a material one, then section 96A provides an available route. If, on the other hand, the proposed change is a material one, I do not see the objection to a fresh application being required". Therefore, section 96A of the 1990 Act, which gives a planning authority power to "make a change to any planning permission" where such change is not material, can be used unless the change is material, in which case a new planning application is necessary.

Whilst this has to be correct, there is no doubt that it is inconvenient. Even if a local planning authority is content to vary the conditions to a permission, if the detail in the description of development contradicts the terms of the new conditions then section 73 can't be used and a new application is needed. Careful attention should therefore be paid to the description of development at the initial planning application stage, wherever possible leaving substantive detail to the conditions.

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