Solicitor Kayleigh Chapman, in our leading Planning & Environmental Law team, examines a recent case which offered a reminder of the limits of Section 73 Applications for both applicants and councils.
In a blog article last summer we reviewed the Court of Appeal decision in Finney v Welsh Ministers  EWCA Civ 1868, in respect of the scope of Section 73 Applications. Essentially, the Court of Appeal determined that a Section 73 Application could not be used to change the description of development.
A recent appeal decision provides a useful reminder of that decision and the scope of Section 73 Applications.
The Appeal Decision - APP/K0425/W/21/3269965
On 3 July 2017 Wycombe District Council granted planning permission for:
“Householder application for conversion of ground floor storage area to enlarge existing annex accommodation used ancillary to main dwelling, re-location of door, fenestration alterations and re-clad end gable (alternative scheme to PP 14/06250/FUL)”
Condition 4 of the 2017 Planning Permission provided that the annex could only be used as ancillary to the main dwelling and at no time could it be severed and occupied as an independent unit.
In summer 2020 an application was made to vary the planning permission by removing Condition 4.
On 6 October 2020 the Council refused planning permission. None of the reasons for refusal addressed the Finney case but instead were solely related to the planning merits of the application. The applicant appealed.
During the course of the Appeal the Inspector requested representations from both the Council and the Appellant as to the impact of the Finney case on the appeal. Naturally, the Council contended that the application sought to vary the description of the development whereas the Appellant considered it did not do so.
The Appeal Decision identifies that whilst the reasons for refusal of the application were planning merit based the main issue before the Inspector was the operation of Section 73 in light of the decision of Finney.
The Inspector found that the operative part of the planning permission was “explicit in referring to the approved accommodation as being used ancillary to the main dwelling”.
The Inspector considered that the Appellant’s application would create a disaccord between the operative parts of the planning permission which explicitly referred to the building being used ancillary to the main dwelling. He concluded that Section 73 did not permit him to remove Condition 4, instead the Appellant would need to make an application for a material change of use of the annex.
The decision is a useful reminder of the limits of Section 73 Applications for both applicants and councils. It is important that when considering whether or not to make a Section 73 Application that careful consideration is given to the relevant planning permission to determine whether what is proposed by removal/variation of a condition would conflict with the description of the development, if it does then Section 73 would not be the appropriate application to make.
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This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.