Limits of Section 73: Finney v Welsh Ministers & Ors ([2019] EWCA Civ 1868)

Introduction

Finney v Welsh Ministers & Ors ([2019] EWCA Civ 1868) is a landmark case adjudicated by the England and Wales Court of Appeal (Civil Division) on November 5, 2019. The central issue revolved around the extent of authority granted under Section 73 of the Town and Country Planning Act 1990, specifically concerning the ability to amend conditions attached to existing planning permissions. Energiekontor (UK) Ltd sought to modify a previously granted planning permission by altering a condition that limited turbine height, aiming to increase it from 100 meters to 125 meters. The case scrutinized whether such modifications extended to the description of the development itself, thereby setting a significant precedent in planning law.

Summary of the Judgment

Energiekontor applied for a variation of Condition 2 under Section 73, seeking to increase the height of wind turbines from 100 meters to 125 meters in their planning permission granted by Carmarthenshire County Council. The local authority refused the application, leading Energiekontor to appeal to the Welsh Ministers. The Inspector initially approved the variation, altering the description of the permitted development to reflect the increased height. However, upon appeal, Sir Wyn Williams rejected the Inspector's authority to change the description, asserting that Section 73 only allows for variation of conditions, not the substantive aspects of the original development description. The Court of Appeal upheld this view, emphasizing that Section 73 does not permit altering the core description of the development, thereby quashing the Inspector's decision.

Analysis

Precedents Cited

The judgment extensively referenced several key cases to articulate the boundaries of Section 73:

Pye v Secretary of State for the Environment ([1998] 3 PLR 72): Established the foundational purpose and interpretation of Section 73, emphasizing its role in allowing relief from existing conditions without revoking the original permission.
R v Leicester City Council ex p Powergen UK Ltd (2001) 81 P & CR 5: Affirmed Sullivan J's interpretation of Section 73, reinforcing that variations under Section 73 create an independent permission with new or amended conditions.
Lambeth LBC v Secretary of State for Housing, Communities and Local Government ([2019] UKSC 33): Supported the notion that Section 73 applications result in an independent permission, not altering the original description of development.
R v Coventry CC ex p Arrowcroft Group plc [2001] PLCR 7: Highlighted that Section 73 cannot be used to fundamentally alter the original development description.
R (Vue Entertainment Ltd) v City of York Council [2017] EWHC 588 (Admin): Reinforced the Arrowcroft principle, denying Section 73 applications that effectively altered the original development description.
R (Wet Finishing Works Ltd) v Taunton Deane BC [2017] EWHC 1837 (Admin): Addressed the fundamental alteration test but was ultimately overruled by the Court of Appeal in Finney.

Legal Reasoning

The court's reasoning hinged on a strict interpretation of Section 73. It emphasized that Section 73 is intended to allow variations of conditions without altering the substantive description of the development. The Inspector exceeded her authority by changing the development's description, thereby conflicting with the original planning permission. The appellate court highlighted that while conditions can be varied, the core aspects of the development—such as its size, scope, and primary characteristics—cannot be altered under Section 73. Any attempt to do so requires a new planning application, ensuring that fundamental changes undergo full scrutiny rather than being adjusted administratively.

Impact

This judgment reinforces the boundaries of Section 73, making it clear that it serves as a tool for adjusting conditions rather than fundamentally altering development plans. Developers seeking significant changes to the nature of their projects must pursue new planning applications, ensuring that such alterations receive comprehensive evaluation and public consultation. This distinction upholds the integrity of the original planning permissions and prevents the circumvention of thorough planning processes through administrative adjustments.

Complex Concepts Simplified

Section 73 of the Town and Country Planning Act 1990

Section 73 allows developers to apply for variations to the conditions attached to their existing planning permissions without altering the fundamental description of the development. It's a mechanism to provide flexibility in meeting the conditions initially set by the local planning authority.

Operative Part of Planning Permission

This refers to the core description of the development—what is being built, its size, scope, and primary features. It does not include the conditions imposed on the development.

Conditions of Planning Permission

These are specific requirements or restrictions imposed by the planning authority that must be adhered to when carrying out the development. They can relate to environmental protections, design specifications, usage limitations, etc.

Fundamental Alteration

A change that goes to the essence of the development description, significantly altering what was originally permitted. Under Section 73, such changes are not permitted; instead, a new planning application must be submitted.

Conclusion

The Finney v Welsh Ministers & Ors case serves as a pivotal reference in understanding the limits of administrative flexibility within planning law. By affirming that Section 73 cannot be used to alter the substantive description of a development, the judgment safeguards the integrity of planning permissions and ensures that significant alterations undergo the appropriate level of scrutiny and public engagement. This clarity benefits both developers and planning authorities by delineating the scope of allowable variations and reinforcing the necessity for new applications when fundamental changes are desired. As such, this decision is instrumental in shaping future applications and interpretations of Section 73 within the realm of land development and planning control.