Well I certainly tempted fate with the heading to my blog post A Helpful Case On The Scope Of Section 73 last November, which dealt with Sir Wyn Williams’ first instance ruling in Finney v Welsh Ministers.
Tear up that blog post. The ruling now been reversed by the Court of Appeal in a very short judgment (5 November 2019).
The point was a narrow one: can section 73 of the Town and Country Planning Act 1990 be used to obtain planning permission not just with conditions differing from those on the original permission but with a changed description of development?
Sir Wyn Williams found that the answer was “yes”, following a previous ruling of the High Court in R (Wet Finishing Works) Limited v Taunton Deane Borough Council (Singh J, 20 July 2017).
However, the Court of Appeal, in a straight-forward judgment by Lindblom LJ has found that the answer to the question is in fact “no”.
“The question is one of statutory interpretation. 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. In other words the purpose of such an application is to avoid committing a breach of planning control of the second type referred to in section 171A. As circular 19/86 explained, its purpose is to give the developer “relief” against one or more conditions. 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.”
Lewison LJ states that Wet Finishing Works was wrongly decided, the judge on that case not having been referred to another High Court judgment, R (Vue Entertainment) v City of York Council (Collins J, 18 January 2017).
In Vue Entertainment, Collins J had referred to another High Court ruling, R (Arrowcroft) v Coventry City Council (Sullivan J, 2001) as doing no more than making “the clear point that it is not open to the council to vary conditions if the variation means that the grant (and one has therefore to look at the precise terms of the grant) are themselves varied.”
By “the grant”, Lewison LJ understood Collins J to be referring to the “operative part” of the permission ie the description of the development itself.
So we now have a clear position: any section 73 application is constrained by the scope of the description of development on the existing planning permission.
Of course all is not lost – if a fresh application for planning permission is not to be made, it is back to the faff of having first having to amend the description of development by section 96A, if the change to the description of development in itself can be shown to be non material, before then making the section 73 application.
In response to submissions as to what might be the implications of his ruling, Lewison LJ said this:
“Nor do I consider that the predicament for developers is as dire as Mr Hardy suggested. If a proposed change to permitted development is not a material one, then section 96A provides an available route. If, on the other hand, the proposed change is a material one, I do not see the objection to a fresh application being required.”
Subject to the proposed change being within the scope of the description of development, the ruling does not change the principle that the relevant test for whether section 73 is available is whether the proposed change is less than a “fundamental alteration” to the approved scheme. The test set out by Sullivan J in Arrowcroft still applies:
“”… 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.”
Lewison LJ’s ruling is likely to have practical implications for a number of current section 73 processes and will immediately influence the way that applicants may wish the description of development on a permission to be framed, so as not unnecessarily to constrain the potential for subsequent section 73 applications.
It may be legally correct, on the restricted wording of section 73 itself, and it may not be the end of the world, but what a shame now to lose the additional procedural flexibility that Sir Wyn Williams’ first instance judgment provided.
Simon Ricketts, 5 November 2019
Personal views, et cetera