The Court of Appeal has overturned a High Court decision and concluded that an Inspector should not have altered a description of development in the course of granting a section 73 (s73) planning permission, as it was beyond her powers.
In Finney v Welsh Ministers the High Court had held that it was acceptable for a s73 planning permission to amend a planning permission for a wind turbine so that it would have a 125m blade tip height even though the original planning permission’s description of development referred to a 100m blade tip height. The Inspector removed the reference to blade tip height from the description of development when granting the s73 planning permission (see Lichfields Planning News, December 2018).
Until now, three High Court cases were relevant to interpreting this element of planning law: R v Coventry CC ex p Arrowcroft Group plc (2001) (‘Arrowcroft’), R (Vue Entertainment Ltd) v City of York Council (2017) (‘Vue’), and R (Wet Finishing Works Ltd) v Taunton Deane BC (2017) (‘Wet Finishing Works’).
In Vue, Justice Collins followed Arrowcroft, which in his view established that it is not open to a local planning authority to vary a condition if that variation means that the precise terms of the original permission (i.e. the description of development) were changed by it.
The Court of Appeal judgment in Finney has ruled that the correct approach to determining whether it is appropriate to use a section 73 planning permission to amend a development is Vue; where Wet Finishing Works contradicts Vue it is wrong and consequently the Finney High Court judgment, which followed Wet Finishing Works, is wrong.
When determining a s73 planning application the decision maker must not consider the description of the development to which the conditions are attached, because s73(2) expressly requires the planning authority to "consider only the question of conditions". The Court of Appeal judgment has found that “the natural inference from that imperative is that the planning authority cannot use section 73 to change the description of the development”.
Lord Justice Lewison said:
“If the inspector had left the description of the permitted development intact, there would in my judgment have been a conflict between what was permitted (a 100 metre turbine) and what the new condition required (a 125 metre turbine). A condition altering the nature of what was permitted would have been unlawful. That, no doubt, was why the inspector changed the description of the permitted development. But in my judgment that change was outside the power conferred by section 73”.
With regard to Counsel for the developer’s concerns that some local planning authorities might seek detailed descriptions of development in order to avoid the possibility of a section 73 planning application being submitted to amend a proposal, Lewison LJ found the answer to be straightforward:
“If a proposed change to permitted development is not a material one, then section 96A [a non-material amendment application] provides an available route. If, on the other hand, the proposed change is a material one, I do not see the objection to a fresh application being required”.
Finney v Welsh Ministers and Others (2019)‘A section 73 permission that varies a description of development can be lawful’, Lichfields Planning News, December 2018,Lichfields Planning Matters, A ‘Minor Material’ clarification (discussing ‘Vue’)