In November 2019, the Court of Appeal ruled in (Finney v Welsh Ministers & Ors (2019)) that the use of ‘Section 73’ applications which vary the description of development from the original planning permission are unlawful and go beyond the powers allowed under Section 73 of the 1990 Town and Country Planning Act 1990 (“TCPA”)

Section 73 can be a useful tool for developers at it allows developers to apply for relief from conditions attaching to an original planning permission without allowing the Local Planning Authority an opportunity to reconsider the initial planning permission.

Section 73(2) of the TCPA expressly states that LPAs ‘must only consider the question of conditions’. When this section of TCPA has bene applied in case law, it has been interpreted that Local Planning Authorities must not alter or consider the description of a development to which the conditions attach.

This concept has recently been considered, and confirmed, in the Court of Appeal case Finney v Welsh Ministers & Ors.

Facts of the Case

The planning permission in question in Finney authorised the installation of two wind turbines with a tip height of up to 100 meters, and associated infrastructure. This permission was granted subject to 22 conditions. One of these provided that the development was to be carried out in accordance with the approved plans and documents, which showed a wind turbine with a tip height of 100 metres.

The developer submitted a subsequent Section 73 application to the Local Planning Authority for the removal or variation of the above condition to allow a taller turbine to be constructed. The application would permit the turbine tips hights to reach 125 meters. A key point to note, is that a variation of this nature would take the development outside of the scope of the development as described in the operative part of the wording of the planning permission.

The Local Planning Authority refused the Section 73 Application and an appeal was submitted by the developer. The appeal was allowed by the planning inspector resulting in the development being allowed subject to a maximum turbine tip hight of 125 meters.

A third party challenged the decision of the planning inspector and the case was referred to the Court of Appeal.

Court of Appeal Decision

For the Court of Appeal, this was a case of statutory interpretation, and it was reinforced that Section 73 can only be used to grant for permission for development without complying with conditions subject to which a previous permission has been granted. Section 73 cannot be used to change the description of development. The Court of Appeal therefore allowed this appeal, and quashed the Inspector’s decision because it was beyond their powers. Finney has made clear that the description of development is off limits when considering a Section 73 application.

This Court of Appeal decision highlights the importance for developers and their professional team to give careful thought at the application stage as to how the description of a development is constructed, to retain future flexibility and keep the option to use section 73 open as a viable option. A narrow description of a development could potentially be fatal to a scheme if a fresh application is required, as this would reopen the planning merits of the scheme and discussions around CIL and affordable housing which could negatively affect viability.

For more information on this case or any planning related matters, please contact Chris Harvey.

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