What are the limitations of section 73 applications following Finney?


13 November 2019

The Court of Appeal in Finney v Welsh Ministers & Ors [2019] has judged that a planning inspector exceeded her powers in granting an application pursuant to section 73 Town and Country Planning Act 1990 that resulted in an amendment to the description of the development in the body of the planning permission previously permitted. 

The case concerned two wind turbines and in particular the tip height of the turbines, which were proposed, in the section 73 application, to be 125 metres rather than 100 metres as permitted by a planning permission. The original planning permission was granted in March 2016 and the section 73 application followed in August 2016 asking to vary the planning condition “to enable a taller turbine to be erected”. The local authority refused the application and the developer appealed. The planning inspector granted the application under section 73 on appeal and changed the description of the development accordingly. In the Court the sole challenge brought was on whether the planning inspector had the power to allow the appeal and to grant planning permission for the development that was not covered by the description of the development in the body of the original planning permission. This was initially rejected by the High Court and hence this matter came before the Court of Appeal.

The legal point to be considered was the limits of the power under section 73 to grant planning permission for development without complying with conditions subject to which a previous planning permission was issued. Is it open to a local authority or planning inspector to alter the description of the development contained in the operative part of the planning permission as well as the conditions? If the application is granted pursuant to section 73 the result is a new planning permission capable of implementation and the developer would have the option of commencing the permission for the 100 metre tip height or the permission for the 125 metre tip height. 

This point had already been considered in the case of R v Coventry [2001], which was a decision in the High Court in which the judge said: “….the council is able to impose different conditions upon a new planning permission, but only if they are conditions which the council could lawfully have imposed upon the original planning permission in the sense that they do not amount to a fundamental alteration of the proposal put forward in the original application.

In Finney the representative for the developer made the point with regard to section 73 applications for developers that it “….enabled them to refine schemes as more information came to light…..If section 73 were to be interpreted in the manner for which Mr Fullbrook contended, developers would be at the mercy of local planning authorities up and down the country which might have differing practices about the level of detail to be specified in the description of permitted development; and who might be encouraged to make such descriptions as detailed as possible to avoid the possibility of applications under section 73...” However, what was accepted is that if a developer had no objection to any of the conditions imposed on a grant of planning permission but wished to change the description of the development then section 73 could not apply. There is also room for non-material amendments under s.96A Town and Country Planning Act 1990.

The Court of Appeal concluded:

…..On receipt of such an application section 73(2) says that the planning authority must “consider only the question of conditions”. It 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…..If the inspector had left the description of the permitted development intact, there would in my judgment have been a conflict between what was permitted (a 100 metre turbine) and what the new condition required (a 125 metre turbine). A condition altering the nature of what was permitted would have been unlawful. That, no doubt, was why the inspector changed the description of the permitted development. But in my judgment that change was outside the power conferred by section 73….

In my opinion this just clarifies the position and the scope of section 73 applications and the determination of the same. They cannot be used to amend the description in the body of the planning permission previously approved.

For local authorities it is important that such applications pursuant to section 73 are not entertained where it would result in an amendment to the description in the body of the planning permission previously permitted.

For developers it is important to be clear in any application for planning permission and be mindful of the limitations of such applications pursuant to section 73 and to obtain legal advice at an early stage.

If you have any queries please contact Steven Bell or another member of Birketts' Planning and Environmental Team. Law covered as at November 2019.