Wednesday, 6 November 2019
Section 73 – Limits to the variation of conditions
I understand the Finney case may be going on to the Supreme Court. I haven't seen this in black and white yet, so wait and see.
The Court of Appeal issued a helpful judgment on 5 November which confirms the correct approach in exercising the power to vary the conditions attached to a planning permission. This was the case of Finney v Welsh Ministers  EWCA Civ 1868. Section 73 of the 1990 Act provides a power to grant planning permission for development without complying with conditions subject to which a previous planning permission was granted. In practice, this allows certain conditions to be removed altogether or to be relaxed or varied. However, the Court of Appeal’s judgment in Finney makes it clear that there is a limit to how far the variation of a condition under section 73 may lawfully go.
The planning permission in question in Finney authorised the installation of two wind turbines with a tip height of up to 100m, and associated infrastructure. This permission was granted subject to 22 conditions. One of these provided that the development was to be carried out in accordance with the approved plans and documents, which showed a wind turbine with a tip height of 100 metres.
The developer subsequently applied under section 73 for the "removal or variation" of that condition to enable a taller turbine type to be erected. A submitted drawing showed a variation of the proposed development so as to permit tip heights for the turbines of up to 125 metres. It is important to note, however, that this variation would have taken the development outside the scope of the development described in the operative wording of the planning permission.
The LPA refused the section 73 application, and the developer appealed to Welsh Ministers (in practice the Planning Inspectorate) against that refusal. Having considered a number of planning issues raised in the appeal, the Inspector allowed the appeal so that the development could be carried out subject to a revised condition that would permit tip heights for the turbines of up to 125 metres. (This also involved varying the operative wording of the permission, so as to remove the words in the description of the development that referred to a tip height of up to 100m for the wind turbines.)
There could be no challenge to the inspector’s planning judgment, but a third party objector (Professor Finney) sought a quashing order in the High Court on the ground that the Inspector had no power to allow the appeal and to grant planning permission for development that was not covered by the description of the development in the body of the original planning permission. The only power, it was argued, was to vary the conditions attached to that development as described in the original permission. The High Court rejected this challenge, noting that the point had not been raised before the inspector. Professor Finney then appealed against that judgment to the Court of Appeal.
In considering the legal issue that this case raised, the Court of Appeal drew attention to a passage from the recent Supreme Court judgment in Lambeth LBC v SSHCLG  UKSC 33, where Lord Carnwath had said: “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.” Furthermore, it is well-settled law that a condition on a planning permission will not be valid if it alters the extent or the nature of the development permitted: Cadogan v SSE (1992) 65 P & CR 410.
Counsel for Prof Finney had stressed in argument the distinction between the “operative part” or grant of the planning permission on the one hand, and the conditions to which the operative part or grant is subject. The distinction between these two parts of a planning permission is reflected in other provisions of the 1990 Act. This distinction between the operative part or grant, on the one hand, and conditions on the other had been drawn in other cases decided under the Act, for example Cotswold Grange Country Park LLP v SSCLG  EWHC 1138 (Admin) (when Hickinbottom J observed: “… the grant identifies what can be done—what is permitted—so far as use of land is concerned; whereas conditions identify what cannot be done—what is forbidden.”).
The question in the appeal in Finney, therefore, was whether, on an application under section 73, it is open to the LPA (or, on appeal, Welsh Ministers) to alter the description of the development contained in the operative part of the planning permission. Similar challenges on this ground had been upheld in previous cases, such as R v Coventry CC ex p Arrowcroft Group plc  PLCR 7.
Although R (Vue Entertainment Ltd) v City of York Council  EWHC 588 (Admin) was decided the other way, this was on the basis that the precise extent of the description of the consented development in that case (an extensive multi-purpose leisure development that included a “multi-screen cinema”) did not prevent a variation of one of the conditions that had specified a 12-screen cinema with a capacity of 2,000, by substituting under section 73 an increase in the number of screens to 13, with a capacity of 2,400. (The important point was that the operative words of the planning permission itself in that case had referred only to a “multi-screen cinema”, without specifying the number of screens or the seating capacity of the cinemas in the description of the development authorised by the permission.)
Section 73 (1) is on its face limited to permission for the development of land “without complying with conditions” subject to which a previous planning permission has been granted. On receipt of such an application, section 73 (2) says that the planning authority must “consider only the question of conditions”. It must not, therefore, consider the description of the development to which the conditions are attached. The natural inference from that imperative is that the planning authority cannot use section 73 to change the description of the development. That coincides with Lord Carnwath’s description of the section as permitting “the same development” subject to different conditions. It is notable, the Court of Appeal observed, that if the planning authority considers that the conditions should not be altered, it may not grant permission with an altered description but subject to the same conditions; on the contrary it is required by section 73(2)(b) to refuse the application. That requirement emphasises the underlying philosophy of section 73 (2) that it is only the conditions that matter.
The Court of Appeal therefore allowed this appeal, and quashed the Inspector’s decision because it was beyond her powers.
© MARTIN H GOODALL