Tightening up on the Scope of Section 73 Applications

22nd January 2020

In November 2019, the Court of Appeal ruled (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 (known more simply as s73).

An earlier court case (Coventry City Council ex p Arrowcroft Group plc (2000)) established that s73 allows an applicant to apply to vary a condition on a planning permission, provided that the proposed change is not a ‘fundamental alteration’ to the development permitted by the original permission. This is a very useful tool for developers who want to amend planning permissions after the initial grant of consent. However, before this case, it had previously been unclear whether s73 could be used where the new condition results in changes to the development that directly conflict with the description of development on the original planning permission. The ruling now confirms that under s73, Councils may only amend, remove or add conditions attached to that permission and they cannot amend the description of development.

The November 2019 Court of Appeal case arises from the original 2018 High Court decision in Finney v Welsh Ministers & Ors where it had been held that it was acceptable for s73 planning permission to allow a wind turbine to have a 125m blade height rather than the 100m blade height set out in the description of development in the original permission. The original appeal Inspector had removed the reference to the blade tip height from the description of development when granting the ‘new’ s73 planning permission.

The 2019 judgement considered this approach and confirmed:

‘On receipt of such an application s73 (2) says that the planning authority must ‘consider only the question of conditions’. It must not, therefore, consider the description of the development to which the conditions are attached. The natural inference from that imperative is that the planning authority cannot use s73 to change the description of the development…’.

Regarding concerns that Councils may deliberately seek detailed descriptions of development to frustrate the s73 process and remove the possibility of a s73 being used to amend proposals, Lewison LJ indicates that the correct route to deal with a material change that does require a change to the description of development is through a fresh planning application and that there should be no objection to this. We have already seen the effects of this decision in practice, with the inevitable consequence being Councils asking for new planning applications and inviting the withdrawal of undetermined s73 planning applications where any proposed amendments would conflict with the description of development.

In order to still benefit from the powers provided by s73, thought will need to be given to the wording of future descriptions of development to build in as much flexibility as possible. It will also be necessary to check that Councils do not seek to introduce unnecessary wording when they register applications. This might include proposing a description of development that does not fix unit numbers of floor space. Ideally, these details would be controlled via planning conditions or within the application drawings, to enable s73 to be used to change those details at a later date. Such an approach will obviously require the Council to take a flexible approach with the description of the development and it will be interesting to see how they react to such an approach.

For more information on the use of s73 applications please contact Senior Associate, Dan Rogers.

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