Law Altered On Altering Permissions: Court Of Appeal, Finney

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”.

Lewison LJ:

“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

Author: simonicity

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

5 thoughts on “Law Altered On Altering Permissions: Court Of Appeal, Finney”

  1. Simon, the takeaway from this case seems to me, as an architect and planner, that we should aim to make the description of development as generic and even vague as we can and also resist tampering by planning officers when they sneak in additional descriptive details. Do you agree?

    Yours,

    Brian

    Brian Waters MA RIBA MRTPI ACArch FRSA brianwaters1@mac.com

    Sent from my iPhone +44 07957871477

    Studio Petersham Gorshott, 181 Petersham Road TW10 7AW

    EDITOR Planning in London magazine planninginlondon@mac.com http://www.planninginlondon.com

    >

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  2. Dear Brian,

    Thanks for copying me in on this exchange of emails.

    I imagine Simon will have seen my blog post on the Court of Appeal judgment that I posted yesterday.

    The point that the CA judgment confirms is not a new one, as witness the previous judicial authorities cited in that judgment. It does, however, make it clear that the Wet Finishing Works case should not be followed.

    As you suggest, maybe the description of the development in the application should not be too specific, although the planning officers may well try to tighten this up in the PP itself (relying on supporting documents and correspondence with the developer in doing so). In a comment on my blog post, I have also drawn attention to the possible incorporation of the application, submitted drawings and supporting documents in the PP, in accordance with the principles set out in R v Ashford BC ex p Shepway DC [1999] PLCR 12.

    On the other hand, the Vue Entertainment judgment clearly represented an example of a case where the precise scope of the development was not specified in the description of the development in the operative words of the PP, but only in a condition, and so an incremental enlargement (of the multi-screen cinema in that case) could legitimately be the subject of a section 73 permission.

    Developers will just have to live with the way that section 73 works, and forget the loophole that was apparently opened by Wet Finishing Works and by the first instance decision in Finney.

    (Both you and Simon Ricketts are welcome to quote from what I have written above, if you or he wish to do so.)

    Kind regards

    MARTIN

    Martin H Goodall LARTPI
    Consultant Solicitor

    Martin Goodall | LARTPI Consultant Solicitor

    t: +44 (0)20 3319 3700 | 48 Chancery Lane, London WC2A 1JF, United Kingdom

    [LinkedIn] [Twitter] [Facebook] [Instagram] [Keystone Law]

    From: brian Waters
    Sent: 07 November 2019 09:59
    To: SIMONICITY
    Subject: Re: [New post] Law Altered On Altering Permissions: Court Of Appeal, Finney

    Simon, the takeaway from this case seems to me, as an architect and planner, that we should aim to make the description of development as generic and even vague as we can and also resist tampering by planning officers when they sneak in additional descriptive details. Do you agree?

    Yours,
    Brian

    Brian Waters MA RIBA MRTPI ACArch FRSA
    brianwaters1@mac.com

    Sent from my iPhone +44 07957871477

    Studio Petersham
    Gorshott, 181 Petersham Road TW10 7AW

    EDITOR Planning in London magazine planninginlondon@mac.com
    http://www.planninginlondon.com

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  3. Does rather beg the question of what level of description one would need in a planning application ? Presumably one that accurately describes the nature and extent of the development and enables the LPA and the public to understand what is being applied for, as opposed to something that may be “as roughly described, or something bigger and brighter that you won’t know about until a section 73 application comes in” ?

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    1. David – I agree that it really needs to be the former. In my view that can be done without being overly specific, given that the specific parameters will all be tied down by condition in any event.

      Like

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