Section 73 permission is capable of amending a description of development

A recent High Court case (Finney v Welsh Ministers [2018] EWHC 3073) has held that the description of development in a planning permission is capable of being varied in order that it is consistent with a condition varied pursuant to a section 73 application provided that such a change does not constitute a “fundamental alteration” to the original scheme.

This case concerned a wind farm development but will likely be applied broadly across the development industry and therefore settle an issue that has long caused uncertainty. Developers can now apply with some confidence for section 73 variations (or section 42 variations in Scotland) where proposed changes to conditions would result in amendments to the description of development.

Context

In 2016, Carmarthenshire County Council (the "Council") granted planning permission for two wind turbines with a tip height of up to 100 metres ("the Original Permission"). The description of the development in the Original Permission included reference of the 100 metre tip height.

The developer subsequently submitted a section 73 application pursuant to the Town and Country Act 1990 to vary condition 2 of the Original Permission to increase the permitted tip height of the turbines to 125 metres. While this application was refused by the Council, a Planning Inspector allowed the developer's appeal against the refusal and granted permission (“the Section 73 Permission”). In granting the Section 73 Permission, the Inspector omitted reference to the tip height of the turbines in the description of the development to accommodate the change to condition 2.

A local resident who objected at the appeal applied to the High Court for an order quashing the Inspector's decision. One of the arguments before the court was that the description of development was not capable of being amended pursuant to a section 73 application.

The Court's Decision

The Court dismissed the application and held that an interpretation of the law that prevented an amendment to the description of the development in order to accommodate a variation to a planning condition would “lead to an over-technical and inflexible approach to the application of section 73”.

Therefore, provided that such an amendment did not constitute a “fundamental alteration” to the originally consented scheme, the varied condition and associated amendment to the description of development were permissible.