Article published 13/01/2020.
In November last year, the High Court examined in Finney v Welsh Ministers & Ors the test for how far a condition on a planning permission could be varied. The decision provided greater scope for planning conditions to be amended so long as the original development was not fundamentally altered. In that case, on an appeal against the refusal of a section 73 application by the Local Planning Authority, a Planning Inspector approved an amended condition increasing the height of wind turbines by 25 metres, even though the description of the original development imposed a limit of 100 metres. Professor Finney challenged that decision.
As a bit of background on the law, section 73 of the Town and Country Planning Act 1990 allows a developer to apply to remove or vary a condition attached to a permission, and the Local Planning Authority can only consider the question of the conditions requested to be varied. Section 73 applications (also known as applications for Minor Material Amendments) are subject to assessment against the Development Plan, any material planning considerations, and all the usual consultation requirements of a standard application.
A decision to grant permission under section 73 creates a ‘new’ planning permission which offers an alternative to the earlier permission. In so doing, it does not invalidate the earlier permission but rather, if the developer relies on the new section 73 permission (i.e. the amended condition(s) is/are complied with rather than those imposed on the earlier permission) then the earlier permission eventually expires without being implemented.
Before Finney, the accepted position was that a decision to vary a condition could not alter the ‘operative’ part of the permission. For instance, a section 73 application could not vary the number of units written expressly in the description of a development.
In Finney, the High Court Judge disagreed with this principle and held that “a variation pursuant to section 73 can be lawful notwithstanding that it may necessitate a variation to the terms of the planning permission which preceded the section 73 application”. This was the sentiment implied in the case of R (Wet Finishing Works Limited) v Taunton Deane Borough Council in 2017. The result of the High Court decision in Finney meant that, so long as the decision on a section 73 application did not represent a “fundamental alteration of the proposal put forward in the original application”, a condition can be altered which would contradict the operative part of the permission (i.e. the description of the development contained in the decision notice). This provided a much wider scope for using section 73 than had previously been considered.
Now, Lord Justices Lewison, Richards and Arnold unanimously overturned the decision of Sir Wyn Williams in the High Court and determined that conditions which alter the extent or nature of the original permitted development are invalid. The Lords agreed with Professor Finney’s challenge against the Inspector’s decision and held that she acted beyond her statutory powers. The decision of the Inspector was quashed but the original permission for the 100 metre turbines remained in place.
The effect of the Court of Appeal decision is that, where an application to vary the original permission involves a potential material amendment to the development (or any other ‘operative’ or fundamental part of the original permission) a fresh application for full planning permission should be required rather than being able to rely upon the provisions of section 73.
Whilst for some this may appear as an additional burden on the system and may put back in the limelight some developments which would otherwise wish to proceed in the shadows of section 73, the reality is that it clarifies the statutory powers of a Local Planning Authority to make public decisions. Where something is expressly written into the description on a decision notice rather than by condition, or a proposed amendment is material, it should not be within the decision maker’s powers pursuant to section 73 to determine what is more than a minor amendment to the original permission.