Summary

The recent Court of Appeal decision in Finney v Welsh Ministers [2019] (All ER (D) 51 (Nov))  provides definitive authority on the inability to use section 73 to amend the description of a development on a planning permission.  This has repercussions for planning applicants, local planning authorities, buyers seeking to acquire sites that are conditional on planning permission and also for objectors seeking to challenge section 73 permissions.

Developers frequently rely on the statutory tools available under the Town and Country Planning Act 1990 to vary planning permissions to accommodate scheme changes. Whether the changes are material, minor material or non-material will determine the type of application that must be submitted to authorise them.

The case of Finney provides new limits to section 73 applications, which are a popular route to vary planning conditions to authorise minor material changes to approved schemes. However, using this route can lead to a conflict between the amended condition and what was originally permitted by the description of the development in the ‘operative’ part of the planning permission.  To resolve this conflict, planning authorities sometimes amend the description of the development on the permission to ensure consistency, which approach was (until now) supported by one line of legal authority (Wet Finishing Works).(R (Wet Finishing Works Ltd) v Taunton Deane BC [2017] EWHC 1837 (Admin), [2018] PTSR 26).

This is what happened in Finney v Welsh Ministers which concerned a planning permission for two wind turbines specified in the description to have “a tip height of 100m”, and which also contained a condition limiting the height of the turbine to 100m by reference to a plan.  The developer sought to increase the size of the wind turbines to 125m and submitted a section 73 application to vary the approved plans referenced in one of the conditions.  

Planning permission was refused by the local planning authority but granted on appeal by the Welsh Ministers, who altered the description of the development by removing the reference to the height of the turbines as well as removing the relevant condition from the new planning permission and substituting drawings of the 125-metre turbines.

A challenge was brought by Professor Finney on whether it is open to the decision maker to alter the description of the development contained in the operative part of the planning permission using section 73. The Appeal judges were clear that changing the description of the development is outside the power conferred by section 73, with the only power conferred being to vary the conditions attached to the permission as described.  However, it is worth noting that this judgement could still be appealed to the Supreme Court.

This case highlights the importance for developers and their advisors 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 alive. Closing down this option could have costly repercussions and 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.

Local planning authorities should be sensible as to how they approach discussions around the description of the development permitted. In most cases it will be the drawings and other planning conditions which define the scope and extent of the development, so a general description of the development authorised by the planning permission will suffice. 

Finney also presents a new line of potential challenge to section 73 permissions if the development description is amended from the original permission.  Buyers acquiring sites conditional on planning, or which benefit from a section 73 permission that is still within the challenge period, should be wary and ensure that the description of the development under the section 73 permission remains intact.

This judgement does not affect non-material amendment applications under section 96A which could, in theory, still be used to make non-material amendments to the description of a development.