Varying Planning Conditions and Permissions
15th January, 2020
Court of Appeal clarifies the scope of S73 of the Town & Country Planning Act 1990
As many involved in planning will know, S73 of the TCPA provides a process for varying planning conditions. On an application under S73 the planning authority
‘shall consider only the question of the conditions subject to which planning permission should be granted’ (ss(2))
‘if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly’ (ss2a))
S73 first entered the planning system as S31A of the 1971 Town and Country Planning Act. Previously, a developer unhappy with a condition had no choice but to appeal the planning decision in its entirety, which risked losing the permission altogether. This new provision enabled the developer to apply for relief from any or all of the conditions, and if the planning authority granted the application, the result would be that a new alternative permission would be created. The developer could then choose which of the two permissions to implement. Importantly for this note, S73 applies across England and Wales.
Whilst this is clear enough its limits have now been tested and clarified by the Court of Appeal in Finney v. The Welsh Ministers and others. In this case, which in its lengthy course resembles a game of snakes and ladders, wind farm developer Energiekontor obtained a planning permission for a development they described as ‘Installation and 25 year operation of two wind turbines, with a tip height of up to 100m, and associated infrastructure…upon a site situated to the north of the village of Rhydcwmerau, Carmarthenshire’. On 8th March 2016, Carmarthenshire granted full planning permission for ‘the development proposed by you as shown on the application form, plans and supporting documents’. The grant of planning permission was subject to 22 conditions, one of which, condition 2, was with reference to a scaled drawing, Figure 3.1, which showed a turbine with a tip height of 100m.
Some five months later Energiekontor made an application under S73 for ‘removal or variation’ of Condition 2, explicitly in their words to ‘enable a taller turbine type to be erected’, by superseding Figure 3.1 with a new Figure 3.1A, showing the larger, 125m tall turbine. Carmarthenshire refused the application, and Energiekontor appealed to the Welsh Ministers. The appointed Inspector allowed the appeal, and granted permission for the taller turbines by reference to Figure 3.1A, and in doing so deleted the reference in the description of the development ‘tip height of 100m’.
Her decision was then challenged by one Professor Finney, a Carmarthenshire resident, on the basis that the Inspector did not have the power under S73 to allow the appeal. This point had not in fact been raised in the appeal to the Inspector, a point noted by judge Sir Wyn Williams, who duly rejected Mr Finney’s application.
The matter did not end there however, as Mr Finney obtained permission to appeal to the Court of Appeal. Lord Justice Lewison gave the court’s judgment, and in doing so considered the distinction between the planning permission – the ‘operative part’; and the conditions to which it is subject, which he indicated was neatly (if rather simplistically) stated by Judge Hickinbottom in Cotswold Grange:
‘the grant identifies what can be done – what is permitted – so far as use of land is concerned; whereas conditions identify what cannot be done – what is forbidden’.
On this basis he said the question was whether, in a Section 73 application, it is open to the decision maker to alter the description of the development contained in the operative part of the planning permission. It is probable that one of the reasons why the case reached the Court of Appeal was because there was conflicting authority. In Arrowcroft Sullivan J said ‘the council is able to impose different conditions upon a new planning permission, but only … in the sense that they do not amount to a fundamental alteration of the proposal put forward in the original application’. That was followed in Vue where Collins J said that the effect of the change would amend ‘the permission itself’ and went on that Arrowcroft ‘does no more than make the clear point that it is not open to the council to vary conditions if the variation means that [terms of the grant] are themselves varied’
In the Wet Finishing Works case Singh J was referred to Arrowcroft (but not to Vue), and focused on the phrase ‘fundamental alteration’ quoted by Sullivan J in that case, deciding that a planning authority may impose different conditions on an application under S73 provided they ‘do not amount to a fundamental alteration of the proposal put forward in the original application’ [our emphasis]. Sir Wyn Williams followed this authority in this case, when he ruled in Energiekontor’s favour.
The Welsh Ministers argued before the Court of Appeal that that was the correct approach. The ‘only limitation’ on a S73 application was that it could not introduce a condition that made a ‘fundamental alteration’ to the proposal. The developer supported this argument and emphasised the practical importance of the provision, in allowing refinement of schemes and avoiding them becoming beholden to overly prescriptive local authorities.
The Court of Appeal cut through such niceties to say that it was a matter of statutory interpretation. S73(2) says that the planning authority must ‘consider only the question of conditions’ which means ‘it must not, therefore, consider the description of the development to which the conditions are attached’. The same development, but different conditions.
The question then resolved itself simply. What was permitted was described as a 100m turbine. The revised conditions restricted the height to 125m; an obvious conflict, making a nonsense of the description, and making it necessary for the Inspector to delete that reference from the description. The effect of this was to alter the nature of what was permitted, and it was therefore unlawful. The Court of Appeal found Collins J’s analysis on Vue was correct, Singh J’s in Wet Finishing Works (and therefore also Sir Wyn Williams in the lower court in this case) were wrong, and the Inspector’s decision was quashed.
This case therefore brings clarity to the use of S73, and a caution to developers to be attentive to the description of the development so that sufficient flexibility in the planning process is maintained. Lewison LJ highlighted that S96A provides a route for non-material amendments to be made, but ‘if, on the other hand, the proposed change is a material one, I do not see the objection to a fresh application being required’.
This latter comment was made at the end of the judgment and actually highlights the real problem. No one would argue that a non-material change should not be permissible – to argue otherwise would be absurd and S96A was brought in to prevent such absurdity. Similarly, no-one would argue that a fundamental change should not require a fresh application. The issue is with the hugely important, much more common area that lies in between, where a proposed change is material but not fundamental. The Inspector in this case considered a number of planning objections to the proposed increase in height, and rejected them all. The Court of Appeal expressly said that there could be ‘no challenge to the inspector’s planning judgment’.
What the court has decided is that there is no mechanism in the planning process to address such a change, short of starting over. As a result, a proposal already thoroughly considered and found wholly acceptable in planning terms, has to go back to square one and start afresh. Anyone involved in developments of any complexity, whether developer or objector, will recognise that as unsatisfactory all round. In short, whilst the court has confidently clarified the law, in doing so, and contrary to Lewison LJ’s closing comments, it has found it to be wanting. It also begs the question in this case as to whether, had the description of the proposed development simply omitted the proposed turbine height, the change would have been found acceptable.
 John Leslie Finney v. (1) The Welsh Ministers (2) Carmarthenshire County Council (3) Energiekontor (UK) Limited  EWCA Civ 1868
 Cotswold Grange County Park LLP v. Secretary of State for Communities and Local Government  EWHC 1138 (Admin)
 R v. Coventry CC ex p Arrowcroft Group plc  PCLR 7
 R (Vue Entertainment Ltd) v. City of York Council  EWHC 588 (Admin)
 R (Wet Finishing Works Ltd) v. Taunton Deane BC  EWHC 1837 (Admin)
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