The ability to amend the description of development in a planning permission by way of a section 73 application has recently been curtailed by the Court of Appeal decision in the case of Finney v Welsh Ministers & Ors  EWCA Civ 1868, with practical implications for existing and future applications.
Section 73 of the Town and Country Planning Act 1990 (“TCPA”) allows for applications for planning permission to be made without complying with one or more conditions subject to which a previous permission was granted. A successful application results in the grant of a new planning permission with one or more different conditions. However, it is a well-established principle that the power is only available where the changes authorised by the new permission “do not amount to a fundamental alteration of the proposal put forward in the original [planning] application”.
The Finney case considered whether the powers of local planning authorities (“LPAs”) under section 73 of the TCPA to grant permission with different conditions extended to permitting consequential amendments to the description of the development in the original permission. In the first instance the High Court decided that they did, introducing some sensible flexibility to the planning system, but last November the Court of Appeal reversed that decision.
The case concerned a planning permission that was originally granted by Carmarthenshire County Council for two wind turbines with tip heights of up to 100 metres, and a subsequent application under section 73 of the TCPA to amend condition 2 of that permission to substitute an elevational drawing showing the turbines with tip heights of 125 metres. The County Council refused the section 73 application but permission was subsequently granted after an appeal to the Welsh Ministers.
The focus was on the fact that the change to condition 2 of the original permission required an amended description of development in the new permission – the existing reference to 100 metre tip heights in the description of development necessarily had to be omitted as a consequence of the amended plan.
The Court of Appeal refused to allow the amended description of development due to the strict wording of section 73 of the TCPA, which permits the LPA to consider only the question of conditions, so the Court of Appeal judges could not consider the description of the development to which the conditions are attached. The judgment referred to previous case law on the issue which held 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 implications of the decision are that LPAs cannot entertain existing or future section 73 applications that would necessitate an amendment to the description of development, and we have recently advised on two instances of LPAs requiring existing applications to be withdrawn under the threat of refusal.
So what are the solutions? A fresh application can of course be made for planning permission for the proposed development as a whole, but that would open up full consideration of the planning merits of the overall proposal, rather than simply the question of conditions subject to which permission should be granted.
One option, as expressly clarified in the Court of Appeal decision, would be to first amend the description of development by way of an application under section 96A of the TCPA for a non-material amendment to the planning permission (if, of course, the change would be non-material). It’s a quirk of the legislation that section 96A allows this in the right circumstances, but a minor-material amendment application under section 73 would not in any circumstances.
The aim of a section 96A application should be to secure an amended description that is as unspecific as possible regarding dimensions or numbers of units for example, leaving such matters to be defined by the planning conditions and the drawings listed in them as far as possible, and thereby widening the scope for future amendments to be made.
Once an amended description of development has been secured by a section 96A application, an application could then be made under section 73 of the TCPA to amend one or more conditions to secure the necessary amendments, as long as the amended scheme would not amount to a fundamental alteration to the originally approved scheme.
If the proposed change is a material one, then a fresh planning application would need to be made. However, consideration should be given to whether that application could be framed as a “slot-in” application for the specific amendment to the scheme so that the application boundary is drawn as narrowly as possible in order to minimise the planning merits of the overall scheme that would need to be considered by the LPA in determining the application.
Whilst the Court of Appeal decision is unhelpful and the implications of not heeding the judgment could be severe, there are good fixes available with the right strategy and a cooperative LPA.