Last month the High Court handed down its ruling in Finney v Welsh Ministers, which hinged on a dispute over what constitutes lawful use of applications under section 73 of the Town and Country Planning Act 1990. These allow amendments to be made to the conditions imposed on an existing permission without reopening the principle of the permission itself. They are widely used by developers of infrastructure and other building schemes to avoid the expense and risk entailed in a new full application.
However, there has been significant uncertainty following the 2017 judgment in Vue Entertainment v City of York Council, which implied that conditions could only be varied if they didn’t contradict the terms of the core permission, as opposed to attached conditions. Simon Ricketts, a partner at law firm Town Legal, said this had led many local authorities to refuse to consider changes proposed under section 73 applications. "We’ve had local authorities push back on pretty minor alterations to schemes made under section 73," he said.
Last month’s ruling concerned an application for two wind turbines in the Carmarthenshire village of Rhydcwmerau. Wind farm developer Energiekontor had sought to use a section 73 application to increase the height of the turbines to 125 metres, despite the original permission limiting them to 100 metres. Objectors to the scheme had challenged the approval of the section 73 application by a planning inspector, on the basis that she did not have authority to approve a variation to conditions that had the effect of contradicting the permission itself.
Ruling in favour of the developer, judge Sir Wyn Williams found that a condition could be altered under section 73 to contradict a permission, as long as the variation didn’t represent a "fundamental alteration of the proposal put forward in the original application" and could lawfully have been imposed on the original permission at the time.
Planning lawyers said the judgment will provide clarity for developers and local authorities and limit the scope of third party objectors to frustrate development proposals. Ricketts said it would "end uncertainty" on the issue. "This crops up again and again. I’d be hard pressed to think of any major application that doesn’t have a section 73 at some point," he said.
David Hardy, a partner at law firm Squire Patton Boggs, who represented Energiekontor on the Rhydcwmerau proposal, said: "This ruling could turn out to be a real landmark case in this area." He said the implications of the judgment are "not limited to wind farm developments", adding that developers would be tempted to use the judgment to get more significant variations through, such as an increase to housing numbers on residential schemes.
Neil Collar, a partner at Edinburgh-based law firm Brodies, said the case would also be "very persuasive" to judges in Scotland, where there is a much higher volume of wind farm applications. "It is now clear that a section 73 can be awarded even where there is a discrepancy with the original application," he said.
Simon Kelly, planning solicitor at Richard Buxton Solicitors, said: "For developers this will be very useful. My concern is that it might be misunderstood by local authorities and some developers will see it as a chance to push the envelope and get more significant changes through, as the line in the sand is no longer as clear." Kelly said the firm was prepared to challenge any developers that take such an approach because if their proposed changes are material that would mean a "fundamental change to the permission".