The Court of Appeal's decision in Finney v Welsh Ministers in late 2019 – that Section 73 permissions cannot alter the description of development – should not have come as a shock. We noted in the original Lambeth appeal case that S73 should be approached as doing what it says in the 1990 Act – authorising development other than in accordance with conditions imposed on the original grant of permission.
In Finney, the developer had applied for (and obtained) permission for "...two wind turbines, with a tip height of up to 100m". It appealed against the later refusal of permission under S73 for amendments to conditions to extend the tip height to 125m. The Inspector considered the merits of the increased height and decided to grant permission, deleting reference to the height in the description of development while doing so (to avoid the fundamental inconsistency between it and the revised conditions that would otherwise result). The Court of Appeal confirmed that the there is no power to do this (and rejected an earlier High Court decision to the contrary).
None of this should make much difference in practice, because the judgment is simply applying a literal interpretation of the words of Section 73.
Gremlins creep in because of the way that planning applications are handled. This is avoidable but sometimes appears to be irresistible.
Building heights, use classes, floorspace figures and unit numbers rarely need to be included in the 'operative' description of development. They can be controlled by condition. Where Section 73 is later used to amend these parameters, a planning judgement is then needed. In some cases, this may require more information on impacts (including, where EIA is applicable, additional environmental information).
There is a tendency to add in all sorts of unnecessary detail when applications are submitted, however. In Finney, the applicant did this to itself. Elsewhere, LPAs will clutter the description of development on receipt and refuse to budge until it has been piled high with detail (much of which ironically then fails to make it into conditions).
There is an open question about whether authorities have the jurisdiction to do this (or whether they simply have to determine the application as submitted, subject to whatever conditions they see fit). It is moot, because no applicant wants to get off on the wrong foot and so changes are conceded which create inflexibilities. These can then hamstring the ability to make mundane changes later on.
Taking away solutions?
Section 96A of the 1990 Act is a useful tool, if used properly. Unlike the S73 power, S96A is not limited to changes to conditions. The power simply allows changes to the decision notice (including conditions), as long as they are "not material".
Descriptions of development can therefore legitimately be decluttered, where changes are – cumulatively – non-material in planning terms. This is undoubtedly a low threshold, but one which will nonetheless not be breached in many cases. For example, deleting a use class or unit numbers from a description of development where use and unit numbers are already controlled by condition. Section 96A was after all introduced in an economic downturn in order to avoid unnecessary fresh planning applications. Although there is no right of appeal against S96A refusal, it provides a sensible basis for changes that – by definition – are trivial.
Post-Finney, doubt is being raised about the use of S96A in this way. Given that the Court of Appeal recently confirmed in the Fulford case that S96A may be used to make non-material changes to reserved matters approvals, concerns about non-material changes to the planning permission itself (whether the description of development, the conditions or the informatives) need to be put in perspective.
The real issue for S96A, which is not legal, is whether:
- as a matter of planning judgement there are land use planning effects that make the change material; and
- there is an adequate information base to make that assessment.
If this begins to become a blocker to sensible changes to schemes to get them off the ground, Government should issue guidance confirming this position to avoid decelerating planning at a time when it is trying to speed it up.
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