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Winds of change: Court of Appeal ruling on use of section 73 for planning permissions

Posted on 20 November 2019

The Court of Appeal has shaken up how section 73 (s.73) can be used for vary planning permissions.

S.73 under the Town and Country Planning Act 1990, allows applications for permission to develop land without complying with a condition(s) previously imposed on a planning permission. The Court of Appeal has now considered the limits of that power.

The case

The case concerns a planning permission which permitted the "installation and 25 year operation of two wind turbines, with a tip height of up to 100m."

The planning permission contained numerous conditions including a condition to comply with a drawing showing the tip height of 100m.

The applicant later requested the replacement of the drawing pursuant to s.73 to show a turbine with a larger tip height of 125m.

The s.73 application was refused and the refusal was appealed to the Inspectorate. The Inspector allowed the appeal and granted permission replacing the drawing and amending the description of the development to remove the reference to '100m'.

The Inspector's decision was challenged in the High Court on the basis that the Inspector had no power to allow the appeal, as her power was limited to varying the conditions attached to the development described. The judge rejected that challenge on the basis that a variation pursuant to s.73 could be lawful, notwithstanding that it might necessitate a variation to the terms of the planning permission which preceded the s.73 application as long as it was not fundamentally different to the development.

Court of Appeal decision

The High Court's decision was challenged in the Court of Appeal. The Court of Appeal decided that it is not open to the local planning authority (or an Inspector) to alter the description of the development contained in the operative part of the planning permission pursuant to the s.73 (a point generally accepted by planning practitioners) and that the description could not just be ignored.

Points to take away

If you already have a planning permission and you intend to vary/remove a condition, but the effect of this means the description of development also needs to be varied, you will now need to (i) submit a fresh planning application or (ii) apply for a s96A non-material amendment to change the description of development and then submit a s.73 application.

If you do not yet have a planning permission, it would be prudent to ensure the description of development steers clear of specifying details (especially numbers) to ensure s.73 can be used down the line. Any details can still be controlled via planning conditions.

It is worth noting that the Court of Appeal didn’t change the principle that s.73 can only be used if the variation/removal of a condition is not a fundamental alteration of the original application. What is a fundamental alteration is a question of fact and degree for the local planning authority.

Beware also that if you currently have a resolution to grant for a s.73 application which may go beyond the scope of what s.73 allows, the decision of the Court of Appeal is a material change of circumstances sufficient to mean the local planning authority may refer the matter back to committee.

Finney v Welsh Ministers, [2019] EWCA Civeila 1868.

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