Summary: Last week, the Court of Appeal[1] considered this question and held that s.73 of the Town and Country Planning Act 1990 ("TCPA") may not be used to vary the description of a development. Whilst this case relates to a development in Wales, the decision applies equally to English law.
About Section 73 of the Town and Country Planning Act 1990 (‘TCPA’): Before the TCPA came into force, developers only had one course of action if they were unhappy with any of the conditions attached to a planning permission granted by local planning authorities (‘LPAs’). They would have to appeal against them. This exposed the developer to the risk of losing the planning permission altogether. Section 73 allows developers to apply for relief from conditions attaching to an original planning permission without allowing the LPA to go back and reconsider the initial planning permission. The LPA can refuse the application, grant permission unconditionally or grant permission subject to different conditions. A developer would then have the choice of which planning permission to implement (the original permission or the varied permission with the conditions amended).
Section 73(2) TCPA expressly states that LPAs ‘must only consider the question of conditions’. Subsequent cases[2] have interpreted this to mean that LPAs must not consider the description of the development to which the conditions are attached. The High Court (in a 2014 case[3] ) clarified this to say that the description of a development is what can be done – what is permitted; whereas conditions identify what cannot be done – what is forbidden.
Facts of this case: A developer had been granted conditional planning permission to construct two wind turbines. The description of development in the permission specified that the turbines were to have a tip height of 100m. Planning permission was granted in March 2016 subject to 22 conditions. In August 2016, the developer lodged a Section 73 application to remove one of the conditions attached to the initial planning permission. In doing so, it was made clear that the developer wanted to build taller wind turbines at a tip height of 125m. The Council refused this application and the developer appealed. The Welsh Ministers granted a variation of the planning permission and removed the words, “with a tip height of 100m”. Professor Finney, who had standing in this case as he was an affected resident, sought a judicial review to quash this decision as it was unlawful on the grounds that it would require a material change to the development permitted. The claim was dismissed by the High Court. Professor Finney appealed to the Court of Appeal.
Court of Appeal judgment: The Court of Appeal reversed the High Court decision and quashed the Welsh Minister’s variation to the planning permission as it was beyond their powers. The Court of Appeal ruled that, when considering a Section 73 application, an LPA “must not consider the description of the development to which the conditions are attached and therefore the LPA cannot use Section 73 to change the description of the development”.
Comment by Robin de Wreede (Partner): This is a significant decision relating to this commonly-used power and will be of considerable interest to practitioners, developers and LPAs alike.
For LPAs this decision brings welcome clarity after some confusing judgments in recent years, not least the High Court decision in this case and the 2017 case of R (Wet Finishing Works Ltd) v Taunton Deane Borough Council [2017] EWHC 1837 which the Court of Appeal in this case held to be wrong.
For developers the question becomes, ‘what do we do if we want to change the description of a development?’ The Court of Appeal answered the question in this case stating that Section 96A would be available to developers when the proposed change is non-material. If the change is a material one then the developer would need to request a new planning permission. While this provides certainty, it comes with a price tag, both in financial terms and in respect of the time involved . It is essential then that developers and their lawyers are careful and clear when describing the development at the initial planning application stage.
For further information please contact:
Partner, Planning and Commercial Property
+44 203 026 8294
[1] Finney v Welsh Ministers & others [2019] EWCA Civ 1868
[2] Cadogan v Secretary of State for the Environment (1992) 65P & CR 410
[3] Cotswold Grange County Park LLP v Secretary of State for Communities and Local Government [2014] EWHC 1138 (Admin)