A Helpful Case On The Scope Of Section 73

I was pleased to read Finney v Welsh Ministers (Sir Wyn Williams, 15 November 2018), or the Rhydcwmerau wind turbines case, as I hope we’ll call it for ease.

Sir Wyn Williams provides the answer to a question I raised in my 3 March 2018 blog post, A Change Is Gonna Come (But Should It Really Need A Fresh Planning Permission?): can you use a section 73 application when the changes to conditions that you are seeking also entail a change to the description of development on the previous permission?

The implied answer from Singh J in R (Wet Finishing Works Limited) v Taunton Deane Borough Council (20 June 2017) was yes but the point was not specifically addressed in his judgment. Sir Wyn Williams has to deal with the point head-on as it was one of the two grounds of challenge.

In the Rhydcwmerau wind turbines case there was a planning permission granted where the description of the development that was thereby approved was as follows:

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

The description of development appears simply to have been incorporated in the permission by reference to the description of development on the application form, but I don’t think anything turns on that.

The permission was subject to a number of conditions. Condition 2 provided that the development was to be carried out in accordance with a number of approved plans and documents which were specified. One such was a “figure” described as “3.1 Typical Wind Turbine Elevation 1:500 @ A3“. It is common ground that this showed a wind turbine with a tip height of 100m.”

The promoter of the project then made an application under section 73 of the Town and Country Planning Act 1990 to substitute plan 3.1 with a plan showing a wind turbine with a tip height of 125m. The local planning authority treated the application as valid but refused it. An inspector allowed the promoter’s appeal.

The claimant challenged the inspector’s decision:

“It is argued that the Inspector should not have allowed the appeal because she had no power under section 73 to amend a condition pursuant to which a prior planning permission had been granted which had the effect of directly contradicting the description of the development permitted in that earlier permission. Further or alternatively, the Claimant asserts that the Inspector failed to consider at all (as she should have done in accordance with established legal principles) whether the application before her constituted a “fundamental alteration” of the prior permission“.

On the first ground of challenge, Sir Wyn Williams held that “the only proper interpretation of the judgment in Wet Finishing Works, is that a variation pursuant to section 73 can be lawful notwithstanding that it may necessitate a variation to the terms of the planning permission which preceded the section 73 application.” The section 73 permission was not unlawful simply because necessarily the permission entailed a change to the original description of development which had referred to a tip height of 100m rather than 125m.

He also referred to the test formulated by Sullivan J in R v Coventry City Council, ex p. Arrowcroft Group plc (2001): “the council is able to impose different conditions upon a new planning permission, but only if they are conditions which the council could lawfully have imposed upon the original planning permission in the sense that they do not amount to a fundamental alteration of the proposal put forward in the original application.”

Applying that test to the decision letter:

Although I am not entirely convinced that the Inspector had in mind that it was necessary for her to consider in terms whether the variation sought would create a fundamental alteration to the original proposal I am prepared to conclude, on balance, that she was aware of that obligation and considered it.”

But even if she had not, it was highly likely that the decision would have been the same. “I have no doubt that had the Inspector considered whether the variation to the condition would have constituted a fundamental alteration to the original proposal she would have concluded that it did not. The whole tenor of her decision letter leads inexorably, in my judgment, to that conclusion as a careful reading of it makes abundantly clear.”

So, a pretty clear signpost for us all to follow – particularly a number of local planning authorities which presently take a plainly too restrictive approach to the use of section 73.

Simon Ricketts, 24 November 2018

Personal views, et cetera

Author: simonicity

Partner at boutique planning firm, Town Legal LLP, but this blog represents my personal views only.

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