Court of Appeal rules planning inspector exceeded her s.73 powers21/11/19
On 5 November 2019 the Court of Appeal handed down judgment in the case of Finney v Welsh Ministers  EWCA Civ 1868. This decision is particularly relevant to those who are acquiring sites which are or could potentially be subject to subsequent amendments to a planning permission in accordance with s.73 Town and Country Planning Act 1990. The impact of the changes can affect the development of the sites being acquired.
The case involved a developer who had applied for planning permission for two wind turbines. The description of the development (contained within the planning permission) included the height of the wind turbines (two wind turbines "with a tip height of up to 100m"). In addition the planning permission contained a condition that the development was to be carried out in accordance with a plan which showed a wind turbine with a height of 100m.
The developer then sought to amend the condition (under s.73 Town and Country Planning Act 1990) to permit the tip height of the wind turbines up to 125m, however the Local Planning Authority (LPA) refused permission and the developer appealed to the Welsh Ministers.
The inspector (appointed by the Welsh Ministers) allowed the appeal and granted the planning permission with the amended condition, in addition the inspector amended the description of the development by removing the words "with a tip height of 100m" from the original permission. This was challenged by the LPA and upheld by the High Court.
The issue was whether, on an application under s.73, it was open to a local planning authority, or the Welsh Ministers on appeal, to alter the description of the development contained in the operative part of the planning permission.
Court of Appeal decision
The Court of Appeal held that a s.73 application could not be used to vary a planning permission when the variation would be an “operative” part of the permission. The description falls within this definition.
The Court of Appeal considered that the powers of s.73 allow a LPA to "consider only the question of conditions." It could not, therefore, consider the description of the development to which the conditions were attached. A condition altering the nature of what was permitted would have been unlawful.
Where the description of the development is overly prescriptive (i.e. refers to the number of units, types of units, floor space) and a change to the development is sought, it is no longer lawful to secure those changes through a s.73 application alone. This is unless the changes proposed do not affect the description of development.
Going forward, particular caution needs to be taken when drafting the description of a planning application. It is advisable to either:
- omit the amount of units or any sizes of units from such applications (if the LPA were agreeable to this you could include conditions on the planning permission or obligations within a s.106 agreement to secure the finer detail which could then be varied at a later date as necessary and not fall foul of the Finney case; or
- to identify the number of units as being more than intended.
For any existing planning permissions, the way round this ruling could be to submit a s96A application (non-material amendment). The LPA will agree to a change of description if the variation is non-material.
A non-material amendment is not legally defined and will very much vary on a case by case basis, what is material in one situation is not necessarily material in another and therefore it is all about fact and degree—however, as a rule it would be matters which are considered to be minimal “de minimus.” A material amendment generally will be anything which may have CIL implications or if it affects the s.106 agreement.
This approach is not a guarantee and advice from the LPA will need to be sought.
If the change is more than a non-material amendment the only way to overcome the issue would be to submit a fresh application which will have time and cost implications.
How Capsticks can help
It is understandable how and why the inspector took the decision they did. If the inspector had left the description of the development un-amended, it would have resulted in a conflict between what was permitted (a 100m turbine) and what the new condition required (a 125m turbine)—however, the provisions of s.73 are clear and do not provide powers to amend the description. Capsticks can help you understand how this will impact current and future planning permissions.
For further information on how this issue might affect your organisation, please contact Suzanne Smith or Spencer Vella Sultana.