Finney v Welsh Ministers [2019] EWCA Civ 1868.
What is the case about?
The case looked at whether section 73 of the Town and Country Planning Act 1990 could be used to amend the description of development contained in a planning permission in addition to amending conditions, to avoid a conflict between the two.
A planning inspector thought that this was permissible, as did the High Court. The Court of Appeal disagreed. Read on to find out why.
Key facts
A developer was granted planning permission to construct two wind turbines with a tip height of up to 100m.
The height restriction was included in the description of development ("installation and 25 year operation of two wind turbines, with a tip height of up to 100m, and associated infrastructure…") and was also controlled by a planning condition which required the development to be carried out in accordance with specified plans. One such plan showed a tip height of 100m.
Subsequently, the developer sought to increase the height of the turbines and applied under section 73 to vary the relevant planning condition by substituting a new plan which increased the tip height to 125m.
The local planning authority refused the application, but on appeal, the planning inspector granted the application, amended the condition and also amended the description of development by removing the reference to the maximum height. The words "with a tip height of up to 100m" were removed and replaced with "installation and 25 year operation of two wind turbines, and associated infrastructure…".
This decision was challenged in the High Court but the challenge was unsuccessful. Therefore an appeal was made to the Court of Appeal.
The Court of Appeal's decision
The Court of Appeal analysed the scope of section 73 and found that on a question of statutory interpretation, it could only be used to grant permission for the development of land without complying with conditions subject to which a previous permission had been granted.
It could not be used to alter the description of development.
In the present case, had the inspector left the description of development intact, there would have been a conflict between what was permitted (100m high turbines) and what the new condition required (125m high turbines). Such conflict would have been unlawful and therefore the permission was quashed.
The Court of Appeal did note that if the proposed change to the description of development was not material, section 96A of the Town and Country Planning Act 1990 could be used to change it. Subsequent to that, changes to conditions could follow.
Implications
This judgment provides a clear ruling that section 73 cannot be used to change the description of development. Therefore, in cases where, for example, the description of development specifies a number of residential units or floorspace, section 73 could not be used to substitute drawings which differ to that description. In such cases, an alternative strategy would need to be to be implemented.
Where changes are viewed as being non-material, one such option is the use of section 96A, in tandem with section 73, a strategy that we have used successfully on a number of schemes.
If section 96A is to be pursued, careful consideration is needed to ensure that the amended description does not conflict with the original conditions, as section 96A will alter the original permission (rather than creating a new one, as section 73 does).
For developers who are yet to receive planning permission for their schemes, it will be worth exploring whether the description of development can be amended prior to grant, to avoid stating specific figures such as unit numbers.
If you would like further advice on the issues raised please contact our planning team.
Authors: Trevor Goode, Head of Planning and Environment and Sarah Batterton, Senior Expertise Lawyer
