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The scope of Section 73 - only taking you so far ...

View profile for Shruti Trivedi
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In a very helpful decision handed down in the Court of Appeal this week, in the case of John Leslie Finney v Welsh Ministers, Carmarthenshire County Council and Energiekontor UK Limited [2019] EWCA CIV 1868, some interesting arguments as to the scope of Section 73 of the Town and Country Planning Act (the “Act”) have both come to the fore and have also been clarified.  This decision, which followed an appeal after an earlier decision by the High Court, will hopefully offer both developers and local planning authorities some clarity as to exactly how far Section 73 can, or cannot, be “stretched” in terms of allowing amendments to the scheme originally granted consent.

Most planning practitioners have been well aware that the grant of an application under Section 73 of the Act results in a new planning permission (London Borough of Lambeth v Secretary of State for Communities and Local Government –[2019] UKSC 33) and that the power under Section 73 principally allows the power to impose different conditions on a new planning permission, but only on conditions which the Council have lawfully imposed upon the original planning permission.  The intention is to ensure, in that sense, that there has been no fundamental alteration of the proposal put forward through the original application and/or the originally consented scheme. 

Then came along the case of Finney v Welsh Ministers, which involved a High Court challenge after an appeal.  The question before the High Court had been to consider the lawfulness of a Section 73 planning permission that necessitated a variation to the terms or description of the original (or an earlier) planning permission.  The case concerned Carmarthenshire resident, Mr Finney, who sought to quash a Section 73 planning permission which had been granted pursuant to an appeal for two wind turbines.  The issue was that the description of the original planning permission (granted in 2016) allowed a tip height of the turbines to be up to 100 metres.  However, an Inspector had allowed the appeal scheme which increased the height of the turbines from 100 metres to 125 metres.  This was, of course, higher than the development described in the original planning permission.  The Inspector on the appeal had considered that her remit was to “consider the effect of the additional size of the proposed scheme against that of the consented scheme”.  She had undertaken a thorough assessment of a number of planning objections to the increase in the proposed height and, in a carefully worded decision letter, she rejected them all and allowed the appeal.  While there could be no challenge to the Inspector’s planning judgement, there was a challenge on the basis that she had no power to allow the appeal and to grant planning permission, as the development on appeal was such that it was not covered by the description of development in the body of the original planning permission.  It was argued that the only power was to vary conditions attached to the development as described. 

In the High Court, Sir Wyn Williams rejected that challenge and after applying previous authorities, including Pye v Secretary of State for the Environment [1998] 3PLR72 as well as R v Leicester City Council EXP Powergen UK Limited [2001] 81P & CR5 and the Supreme Court’s decision in Lambeth LBC v Secretary of State for Housing, Communities and Local Government [2019] UK SC33, it was reinforced that there was a distinction between the “operative part” or grant of the planning permission on one hand, and the conditions to which the operative part or grant is subject.

One of the key questions in the proceedings before the Court of Appeal was whether, on an application under Section 73, it can be open to the local planning authority to alter the description of the development contained in the operative part of the planning permission.  In a very well-reasoned judgement, Lord Justice Lewison has helpfully analysed the previous cases, focusing in particular on R v Coventry CC ex p. Arrowcroft Group Plc [2001] PLC7, which was later applied by Collins J in R (Vue Entertainment Limited) v City of York Council [2017] EWHC 588 (Admin).

Vue, in particular, concerned a challenge on the basis that the application under Section 73 in that case represented a “fundamental alteration” to the effect of the (earlier) planning permission.  Collins J referred to Arrowcroft and concluded that: “Thus, Arrowcroft (supra) in my judgement does no more than make the clear point that it is not open to the Council to vary conditions if the variation means that the grant (and one has therefore to look at the precise terms of the grant) are themselves varied”

The Court of Appeal helpfully analysed these cases against the decision of Singh J in R (Wet Finishing Works Limited) v Taunton Deane BC [2017] EW8C 1837 (Admin),  where an application was made to vary an original planning permission by increasing the number of permitted dwellings from 84 to 90.  The argument had been raised in that case that there was a “fundamental inconsistency between the operative part of the decision notice and the conditions in accordance with which development must be constructed”.  Applying Arrowcroft, Singh J appeared to take the proposition that different conditions could be imposed by the local planning authority on an application under Section 73, provided that a fundamental alteration to the proposal put forward in the original application had not taken place, and also that an alteration would be fundament if it “gives with one hand and takes away with the other”.  He had also decided that whether an alteration was or was not fundamental was a question of fact and degree involving a planning judgement, which was for the decision-maker to make and could only be questioned by the Court if it were irrational.  The High Court, in the case of Finney, had clearly followed the approach adopted by Singh J in the Wet Finishing Works case. 

In Finney, the Welsh Ministers and the developer sought to argue before the Court of Appeal that the only fetter on the power of the local planning authority on an application under Section 73 would be that it could not introduce a condition that made a “fundamental alteration” for the development permitted.  They also argued that the question of fundamental was one of fact and degree for the planning authority to address and, on behalf of the developer, it was suggested that Section 73 enabled refinement of schemes as more information came to light about what might be financially viable or physically deliverable.  Concern was expressed that if the current appeal was allowed and Section 73 restricted in its scope as proposed, developers would be at the mercy of local planning authorities who could choose to make descriptions of development so detailed that it could avoid the possibility of meaningful applications under Section 73.  However, the developer had to concede that if they wished to change the description of the development, Section 73 could not apply and it could only serve to amend the conditions. 

LJ Lewison highlighted that the question was one of statutory interpretation and Section 73 (1) was, on its face, limited to permission for the development of land “without complying with conditions” subject to which a previous planning permission has been granted.  The description of the development to which the conditions are attached, therefore, must not be revisited by using the Section 73 route.  He highlighted that the natural inference was that the local planning authority cannot use Section 73 to change a description of the development.  He acknowledged that if the Inspector (when the case had been before her) had left the description of the permitted development intact, there would have been a conflict between the permitted 100 metre turbine and the proposed 125 metre turbine that the new condition was proposing.  A condition altering the nature of what was permitted would have been unlawful and that was no doubt why the Inspector was compelled to change the description of the permitted development itself. 

However, in LJ Lewison’s judgement, the change was outside the power confirmed by Section 73.  He accepted submissions by the County Council that one of the purposes of Section 73 is to safeguard the original planning permission and that an application under Section 73 results in a new planning permission.  He also dismissed the concerns expressed on behalf of the developer, on the basis that if a proposed change to permitted development is not a material one, then Section 96A of the Act provides them with an available route and if, on the other hand, the proposed change is material, there should be a fresh application required. 

In summary, he held that Collins J’s approach in the Vue case was correct in the analysis of the scope of Section 73, and that Singh J’s conflicting conclusion in Wet Finishing Works Limited was wrong.  The appeal was therefore allowed, and the Inspector’s decision was quashed as having been beyond her powers. 

This should be very useful in now advising developers or planning authorities as to the legitimate scope of what a Section 73 application can do. Whilst developers may think that by changing a seemingly innocuous condition to effectively “open the gate” to Section 73, and then using that application to change the description of what they originally applied for, may be a clever tactic, this case seems to certainly put paid to any such circumvention of the Section 73 process. It would clearly be ruled as summarised by LJ Lewison in Finney, “a misuse of section 73”.