Factual and Procedural Background
On 21 January 2016, Company A applied to The County Council for planning permission to install and operate two wind turbines with a tip height of up to 100 metres, along with associated infrastructure, at a site north of a village in The County. On 8 March 2016, The County Council granted full planning permission subject to 22 conditions, including Condition 2 which required development to be carried out in accordance with specified plans showing turbines of 100 metres tip height.
On 5 August 2016, Company A applied under section 73 of the Town and Country Planning Act 1990 to remove or vary Condition 2 to permit taller turbines with tip heights up to 125 metres, supported by revised plans. The County Council refused this application. Company A appealed to the Welsh Ministers, where an inspector allowed the appeal and granted planning permission for turbines up to 125 metres, effectively removing the original 100-metre height limit from the description of the development. The challenge before the court concerned whether the inspector had the power under section 73 to grant planning permission varying the description of the development itself, rather than only varying conditions.
Legal Issues Presented
- Whether, under section 73 of the Town and Country Planning Act 1990, a local planning authority or appeal body may vary the description of the development contained in the operative part of a previously granted planning permission, or whether their power is limited strictly to varying the conditions attached to that permission.
- Whether the inspector’s decision to grant planning permission for development with a materially different description (turbine height increased from 100m to 125m) was beyond the powers conferred by section 73.
Arguments of the Parties
Appellant's Arguments
- The power under section 73 is limited to varying conditions attached to an existing planning permission and does not extend to changing the description of the development itself.
- Changing the description of the development constitutes a fundamental alteration beyond the scope of section 73.
- Allowing changes to the description via section 73 would undermine the statutory scheme and the rights of consultees.
- Authorities such as R (Vue Entertainment Ltd) v City of York Council and R v Coventry CC ex p Arrowcroft Group plc support the limitation of section 73 to conditions only.
Appellee's Arguments
- The only limitation on the power to vary conditions under section 73 is that the variation must not amount to a fundamental alteration of the permitted development.
- The description of the development in the operative part may be amended consequentially to reflect changes in conditions, provided the changes are not fundamental.
- Section 73 is practically important for developers, allowing refinement of schemes without the risk of losing planning permission altogether.
- The test from Bernard Wheatcroft Ltd v Secretary of State for the Environment was advanced as the relevant criterion for assessing changes.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Pye v Secretary of State for the Environment [1998] 3 PLR 72 |
Explains origin and purpose of section 73; allows applications for relief from conditions without altering original permission. |
Used to affirm that section 73 permits relief from conditions but does not allow altering the description of development. |
| R v Leicester City Council ex p Powergen UK Ltd (2001) 81 P & CR 5 |
Approved Pye’s description of section 73’s scope. |
Supported the interpretation that section 73 creates an alternative permission subject to new or amended conditions only. |
| Lambeth LBC v Secretary of State for Housing, Communities and Local Government [2019] UKSC 33 |
Confirmed that section 73 permissions are for the same development subject to varied conditions. |
Reinforced that section 73 does not permit changes to the development description. |
| Cadogan v Secretary of State for the Environment (1992) 65 P & CR 410 |
Conditions invalid if they alter extent or nature of permitted development. |
Supported the principle that changes cannot fundamentally alter development under section 73. |
| Cotswold Grange County Park LLP v Secretary of State for Communities and Local Government [2014] EWHC 1138 (Admin) |
Distinction between operative part (what is permitted) and conditions (what is forbidden). |
Clarified the legal distinction relevant to section 73 applications. |
| Winchester City Council v Secretary of State for Communities and Local Government [2015] EWCA Civ 563 |
Confirmed the distinction between grant and conditions in planning permissions. |
Supported the interpretation limiting section 73 to conditions only. |
| R v Coventry CC ex p Arrowcroft Group plc [2001] PLCR 7 |
Section 73 cannot be used to vary conditions if that variation fundamentally alters the description of development. |
Held that the council had no power to vary conditions resulting in a fundamental inconsistency with the development description. |
| R (Vue Entertainment Ltd) v City of York Council [2017] EWHC 588 (Admin) |
Confirmed that section 73 cannot vary the operative part of the permission, only conditions. |
Supported the principle that changes under section 73 must not alter the grant itself. |
| R (Wet Finishing Works Ltd) v Taunton Deane BC [2017] EWHC 1837 (Admin) |
Section 73 permits different conditions if not a fundamental alteration; fundamental alteration is a question of fact and degree. |
Followed by the lower court but rejected by this court as incorrect in its interpretation of section 73. |
| Bernard Wheatcroft Ltd v Secretary of State for the Environment (1982) 43 P & CR 233 |
Test for whether a development is "in substance" the same as originally applied for, focused on consultation and materiality. |
Rejected as the appropriate test for section 73 applications by this court. |
Court's Reasoning and Analysis
The court began by examining the statutory framework of section 73 of the Town and Country Planning Act 1990, which allows applications for planning permission to develop land without complying with conditions of a previous permission. The key statutory limitation is that the authority "shall consider only the question of the conditions subject to which planning permission should be granted."
The court reviewed authoritative case law explaining that section 73 was intended to provide relief from conditions without altering the fundamental nature or description of the permitted development. The distinction between the operative part of a planning permission (the description of the development permitted) and the conditions attached to it was emphasized, with conditions defining restrictions rather than altering the scope of the permission.
The court analyzed the three relevant High Court decisions addressing whether section 73 permits changes to the description of development. The court found the approach in R v Coventry CC ex p Arrowcroft Group plc and R (Vue Entertainment Ltd) v City of York Council persuasive, holding that section 73 does not empower authorities to vary the description of the development itself, only the conditions.
The decision in R (Wet Finishing Works Ltd) v Taunton Deane BC, which allowed more latitude, was considered incorrect. The court rejected the application of the Bernard Wheatcroft "in substance" test as inappropriate for section 73, noting its focus on consultation and that it addressed different statutory provisions and factual contexts.
Applying this reasoning, the court held that the inspector exceeded her powers by altering the description of the permitted development to allow turbines with a tip height of 125 metres, rather than the originally permitted 100 metres. Such a change was beyond the scope of section 73, which is limited to varying conditions, not the description of the development itself.
Holding and Implications
The court's final decision was to ALLOW THE APPEAL and quash the inspector's decision on the basis that it was beyond the powers conferred by section 73 of the Town and Country Planning Act 1990.
The direct effect of this ruling is that the planning permission granted by the inspector for turbines up to 125 metres tip height is invalid, as it improperly altered the description of the development. The case clarifies that under section 73, planning authorities and appeal bodies may only vary conditions attached to a previously granted permission and may not change the fundamental description of the permitted development. No new precedent beyond this interpretation was established.