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Insights // 15 June 2020

Scope of Section 73 Powers Clarified - Finney v Welsh Ministers [2019] EWCA Civ 1868

Solicitor Kayleigh Chapman, in our leading Planning & Environmental law team, discusses clarification recently provided by the Court of Appeal as to the scope of Section 73 when seeking amendments to a planning application after permission has been granted.

We have recently published a blog article in respect of applications to vary conditions under Section 73 Town and Country Planning Act 1990 (“1990 Act”). This article will look at the recent case of Finney v Welsh Ministers [2019] EWCA Civ 1868.

In 2006 the applicant applied for planning permission for:

“Installation and 25 year operation of two wind turbines, with a tip height of up to 100m, and associated infrastructure including turbine foundations, new and upgraded tracks, crane hardstandings, substation, upgraded site entrance and temporary construction compound upon a site situated to the north of the village of Rhydcwmerau, Carmarthenshire”

Planning permission was subsequently granted by the Local Planning Authority for:

“the development proposed by you as shown on the application form, plans and supporting documents”

That planning permission was subject to a number of conditions including a Condition 2 requiring the development to be carried out in accordance with a number of plans and documents.

The applicant subsequently sought to vary the planning permission under Section 73 1990 Act to allow an increase in the height of the wind turbines from 100m to 125m. The amendment sought was to Condition 2 and to substitute a plan showing the heights of the wind turbines.

The Local Planning Authority refused that application and the applicant appealed. The Inspector granted the appeal and concluded:

“The appeal is allowed and planning permission is granted for installation and 25 year operation of two wind turbines, and associated infrastructure including turbine foundations, new and upgraded tracks, crane hard standings, substation, upgraded site entrance and temporary construction compound (major development) at land to the north of Esgairliving Farm, Rhydcymerau in accordance with the application Ref W34341 dated 5 August 2016, without compliance with condition number 2 previously imposed on planning permission Ref W/31728 dated 8 March 2016 and subject to the conditions set out in the schedule attached to this decision”

The Inspector had clearly thereby changed the description from what was originally granted by the Local Planning Authority (height of 100m to 125m)

The case came to the High Court with the sole question as to whether the Inspector had the power under Section 73 to vary the description of the planning permission. 

The case was appealed and the Court of Appeal determined that “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.”

The case provides clarification as to the scope of Section 73 of the 1990 Act. Developers should consider the description of any development carefully. Following the grant of planning permission they will need to give careful thought as to whether any amendments they wish to make could be amended by a variation to the conditions attached to planning permission. If the alterations cannot be effected by a Section 73 application or an application under section 96A of 1990 Act then the Developer will need to consider whether more minor changes could be achieved by one of those applications which would enable development to proceed. If not, a new application for the development is likely to be required. 

For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800. 

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.

Kayleigh Chapman

Kayleigh Chapman

Solicitor, Planning & Environmental Law

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