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 [2019] 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 [2019] 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 [2014] 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 [2001] PLCR 7.

Although R (Vue Entertainment Ltd) v City of York Council [2017] 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

15 comments:

  1. Martin, great summary as always. Recently there were a number of summaries on a judgement (can't remember which) which it was interpreted as telling us that where you have a description for residential development of "XX" dwellings, this did not stop you from submitting a S73 to amend the approved plans to show a higher number of dwellings than in the description provided the increase was not considered a material increase requiring a new permission altogether. What i can't seem to understand from your summary and those i have read from others on this new judgement is whether the scenario i have just summarised is still considered possible? i.e is this new judgement saying that even if an applicant submits a S73 simply to amend the approved plans and increase housing numbers above the description of the application, rather than also asking the Council to amend the description when releasing a new decision notice, that cannot any longer be seen as possible? Or is this judgement simply saying that a Council has no powers to amend the description of development when releasing a decision notice under approval of a s73 but you could still potentially amend the approved plans to show a higher number of houses than is in the description provide it is not considered a material change.

    I suppose an increase of 10 from 400 may not be considered material but 10 from 10 would.

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    1. I am not aware of the other case to which my anonymous correspondent refers. If the actual description of the development in the operative wording of the permission specifies precisely the number of houses permitted, then (as Finney confirms) section 73 cannot be used to increase that number. I suspect that the case to which Anon. refers may be one where the number of houses was specified only in a condition, and in that case section 73 could be used to increase the number, but as Anon. suggests, the number cannot be increased to such an extent as to produce a development that is significantly different in its nature and scale compared with the development described in the operative words of the original planning permission.

      The Vue Entertainment case, cited in the Finney judgment, was an example of a case where section 73 was used legitimately for an incremental enlargement of the development, but that was possible only because the number of screens and seating capacity in the multi-screen cinema in that development was not specified in the description of the development in the operative words of the permission, but only in a condition, which could legitimately be varied under section 73. I would suggest, however, that it would not have been lawful in that case to double the number of screens or the seating capacity, because that would clearly have produced a development that was substantially larger than what the permission envisaged.

      [Bear in mind also the cases dealing with the incorporation of submitted drawings and other documents in the planning permission, on which some guiding principles were set out in R v Ashford BC ex p Shepway DC [1999] PLCR 12.]

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  2. Hi Martin,

    At a recent RTPI conference, we were advised of a loophole whereby you simply change the description of development using a non-material amendment, then apply under the powers of S73 for the development in question.

    I.e. change the description of the wind turbines to exclude the term '100 metres', and then vary the plans condition to permit a 120 metre turbine.

    Is this sound?

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    1. I can understand what is being suggested, but would a proposed non-material amendment that seeks to remove the 100 m limit from the operative wording of the permission be accepted by an LPA (or by an Inspector on appeal)? After Finney, I suspect that planning officers may be wary of accepting the removal of specified numbers or sizes from the operative words of a PP, because this might well open up the loophole that was demonstrated by the Vue Entertainment case.

      Even if the first part of this suggested ploy were to succeed, the subsequent amendment of the condition might still be resisted, and success could not necessarily be guaranteed on appeal.

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    2. Hi
      Am I not right in thinking there is in fact NO right of appeal in S96A NMA cases?

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    3. I dashed off my reply to the previous comment without considering section 78 in any detail. I agree with Richard W that, on the face of it, there can be no appeal against the refusal of a section 96A application (on the basis that it is not a planning application as such, nor does it appear to come into any of the other types of application that are covered by section 78).

      On the other hand, the Court of Appeal was prepared to accept in R (Fulford PC) v City of York Council [2019] EWCA Civ 1359 that a section 96A application can be made in respect of a conditional approval of reserved matters, even though a reserved matters approval is not in itself a planning permission. It does therefore occur to me to wonder whether one might argue that, even though a section 96A application is not an application for planning permission as such (in contrast to an application under section 73), its refusal ought nevertheless to be capable of being appealed under section 78.

      I doubt whether PINS would accept an appeal against a refusal of a section 96A application, but it would be interesting to see what the courts might make of this if it were to be challenged.

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  3. Hi Martin,

    Great post as usual. As identified, applicant's with current S73 applications are now going to be minded to submit S96a applications to change the description of development. However, as you have stated LPAs will be wary of accepting such amendments, not least in my view because it would be confusing for publicity purposes. With new applications, what applicants will now be minded to do is remove wording from descriptions of development which could bind them in any subsequent S73 case to as wide a range of amendments as they may wish and as such may submit planning applications with much vaguer descriptions. This will cause a problem for LPAs who will understandably wish to include as much detail as possible. I have searched for guidance in the DMPO around descriptions of development however there is no such direction on what has to be included. PPG (Paragraph: 046 Reference ID: 14-046-20140306).states that ‘Before publicising and consulting on an application, the local planning authority should be satisfied that the description of development provided by the applicant is accurate’. However applicants will argue that the omission of certain details isn’t necessarily inaccurate.

    Are there cases where descriptions of development have been tested in this regard? Or any thoughts on this point more generally?

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    1. I published this further query in the hope that someone else might suggest an answer. Is anyone aware of this issue having been addressed in an appeal? I don't get involved in the finer details of development management these days, but there must be readers of this blog who have come across this sort of issue. Do feel free to contribute to the discussion if you can quote from your own experience or know of any cases in which this issue has arisen.

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    2. Hi Martin,

      As far am I am aware LPA's can unilaterally amend the description of development, albeit it is good practice to involve and consult the applicant. As the description is often used for consultation purposes, it is unlikely an LPA would accept a vague description.

      Kris

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    3. Hi Martin

      What I have seen in a great many appeal decisions is Inspector's noting cases where the LPA has decided to amend the description of development from that written on the application form and running with the LPA version if they feel this more accurately describes the development proposed. This would usually be in cases of full planning permission for building works (of whatever scale) where the Inspector will make an objective judgement as to whether the descriptive terms used fairly and accurately describe the drawings etc.

      I think this highlights that there is nothing (so far as I am aware) to limit the LPA/Inspector to only using the words on the application form in their decisions if the description they adopt better describes the development proposed in the drawings etc.

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    4. I think it is widely accepted that the description of the development can be changed by the LPA in order more accurately to describe the development for which permission was actually being sought. Furthermore, the LPA may decide to grant permission for less than was applied for, and this to will necessarily be reflected in the operative wording of the permission. However, there is judicial authority (which, regrettably, I am unable to pin down at the moment) confirming that, apart from the two situations I have just outlined, the LPA cannot simply decide on a whim to vary the description of the development that the applicant is seeking (unless this is first agreed with the applicant).

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  4. Very insightful article Martin. We have planning for adding 8 units into a building's roof and intended to use a s.73 to change to 9 units. Am I right in saying that in light of the High Crt judgement this won't be possible even though the external facade of the dev. is not changing, just the internal division of the space.

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    1. The answer to this question depends, as in Finney, on the precise description of the development authorised by the planning permission. If the operative words of the permission describing the development specified 8 units, then it does not appear that the permission could be varied by means of section 73 to provide 9 units. If, however (as in the Vue Entertainment case), the precise number was not specified by the operative words of the permission, but was referred to only in a condition, then (within reasonable limits) it may be possible to vary the number referred to in that condition. If this proves not to be possible, then the only other alternative is to apply for a fresh planning permission for 9 units, although this would no doubt involve the payment of an application fee calculated on the basis of all 9 units (not just the additional one).

      I suppose the lesson to be derived from Finney is that one should make up one’s mind at the outset as to precisely what development one wants to carry out, and then to stick to that intention.

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  5. Hi Martin
    The Finney principle seems fine when it is clear to everyone what the description means, but it has caused difficulties in rural areas where applications have been granted for Agricultural Workers' Dwellings and subsequent s73 applications are made to remove conditions restricting their occupancy to "those employed in agriculture " (usually extended to retired AWs, dependants, widows etc.). Many authorities in the South West are taking the line that an Agricultural Worker's Dwelling is fundamentally different enough from simply a dwelling that s73 can't be used to remove such a condition. An authority currently saying I can't use s73 to remove such a condition for a client has a policy in its Local Plan stating that "Applications for the removal of occupancy conditions or ties on dwellings for rural workers will only be permitted where there is compelling evidence to demonstrate that such a restriction is no longer justified." No alternative to s73 as a method of seeking a removal in line with this policy has been suggested. I take the line that an application for an AWD is actually an application for a dwelling that, by stating it is for an agricultural worker, is setting out as part of the operative description the policy justification for why a dwelling in the countryside ought to be allowed. An AWD is not a defined separate use and has not, to the best of my knowledge, ever been held to be sui generis, so it seems to be a normal dwelling that has its occupancy restricted by condition. The NPPF refers at para 79 to isolated homes in the countryside being justified by the need for a rural worker to live at or near a place of work, not to these being fundamentally different from other homes or dwellings. I guess the same issue will apply to applications to remove holiday occupancy conditions. I wonder if you or any of your contributors have any thoughts on this?

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    1. I am bound to say that, in my view, LPAs would be wrong in attempting to resist a section 73 application by reason of the original description of the development in the planning permission being an “agricultural worker’s dwelling”. It is well settled law that such a description does indeed restrict the initial use of a building to that precise use (see Wilson v West Sussex CC and East Suffolk CC v SSE). However, in the absence of a condition specifically precluding the operation of section 55(2)(f) (as interpreted in Trump International and in Dunnett Investments), the use of the dwelling will fall within Use Class C3 generally, and it can then be used for any purpose within that use class, subject of course to the effect of the AOC.

      It is for this reason that I am confident that a section 73 application could not be dismissed out of hand in this situation, but an LPA should not have to resort to such a tactic, because in practice getting an AOC removed is a very high hurdle for an applicant to surmount, and refusals of such applications are routinely (though not automatically) upheld on appeal. If the LPA is confident that the AOC still fulfils a legitimate planning purpose, then they should process the section 73 application in the usual way but refuse it, and should then be reasonably confident in defending any appeal against that refusal.

      For a more detailed discussion of this topic, see pages 63 to 71 and page 80 of my book, The Essential Guide to the Use of Land and Buildings under the Planning Acts [Bath Publishing, ISBN 978-0-9935836-5-0]

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