Planning permission: Can a s.73 permission amend the description of development?

If a developer has been granted planning permission subject to conditions, it can make an application under Section 73 of the Town and Country Planning Act 1990 in order to amend the conditions and secure the grant of a new permission.

Over the years, various attempts have been made to stretch the application of Section 73 so as to, in essence, amend the description of the development. The Court of Appeal in Finney v Welsh Ministers 2019 EWHC Civ 1868 has now made it clear that there is a limit to how far Section 73 can be used.

The case concerned a developer who was seeking to amend a planning permission it had been granted for two wind turbines. The original application showed the wind turbines “with a tip height of up to 100m“. The developer sought the removal or variation of a condition in order to “enable a taller turbine type to be erected”, namely of a height of up to 125m.

The Council refused the requested permission but it was subsequently granted on appeal by an Inspector who effectively amended the description of the development.

The subsequent Court of Appeal judgment centred on whether the Inspector had the power to grant planning permission for development that was not covered by the description of the development in the body of the original 2016 planning permission.

Various High Court planning permission decisions had already grappled with this dilemma, including:

• In R v Coventry City Council, ex parte Arrowcroft Group plc [2001] PLCR 7 permission was originally granted for one food-store and one variety store. An attempt was then made to vary the permission via section 73 to permit one food-store and up to six non-variety food-stores. It was held that this was unlawful – section 73 could not be used to change the “operative part” of the permission (i.e. the description);
• In R (Vue Entertainment Ltd) v City of York Council [2017] EWHC 588 (Admin) permission had been granted for, amongst other things, a 12 screen cinema. A section 73 application sought to amend this to a 13 screen cinema. The Court held that the section 73 application did not amount to a “fundamental change” to the terms of the original grant (which permitted a multi-screen cinema) and was thus lawful; and
• In R (Wet Finishing Works Ltd) v Taunton Deane Borough Council [2017] EWHC 2037 Admin permission was originally granted for 84 dwellings. An application was made to amend this to 90 dwellings. The High Court held that the section 73 amendment did not amount to a fundamental alteration of the original proposal, and that this was a matter of fact and degree. The High Court in Finney followed this decision.

The Court of Appeal in Finney disagreed with the approach in Wet Finishing Works. 

The Court determined that “the question is one of statutory interpretation“.

Section 73(2) details that, on receipt of an application, a local planning authority “shall consider only the question of the conditions”. This coincides with a recent Supreme Court decision where Lord Carnwarth stated that “a permission under section 73 can only take effect as an independent permission to carry out the same development as previously permitted, but subject to the new or amended conditions.” (Lambeth London Borough Council v Secretary of State for Housing, Communities and Local Government [2019] UKSC 33).

Thus on receipt of a section 73 application the local planning authority must not consider the description. The Court of Appeal held that it therefore followed that section 73 cannot be used to alter a description, and that the Inspector went beyond her powers.  The Court of Appeal quashed the Inspector’s decision.

Whilst the High Court decisions in Wet Finishing Works and Finney had the intention of allowing flexibility for developers, they in fact left us with an unpredictable situation where a judgment needed to be made on a case by case basis. The Court of Appeal judgment in Finney is a welcome decision reflecting the stronger guidance on Section 73.

If you need advice on planning permission, contact our expert planning lawyers.