It was recently asked whether it is legally possible to make an application under section 73 of the Town and Country Planning Act 1990 to the Local Planning Authority, in order to vary a section 73 permission.

First published by LexisNexis

Does it therefore mean that development descriptions to section 73 applications/permissions should follow the principles in Finney, namely, that the inclusion of specific information (such as a date, and reference to the condition being varied) means it would not be possible to subsequently alter these details under a further section 73 application in the future?

References:
Finney v Welsh Minsters [2019] EWCA Civ 1868

The Court of Appeal case of Finney v Welsh Minsters established that section 73 of the Town and Country Planning Act 1990 (TCPA 1990) cannot be lawfully used to amend a description of development in a planning permission. The case concerned two wind turbines, the tip height of which were proposed, in the TCPA 1990, s 73 application, to be 125 metres rather than the permitted 100 metres.

There are three principal ways in which the scope of an express permission can be limited:

• the description of development may include specific identifiers or numbers eg of residential units, or quantum of floor space
• there might be conditions on the permission that limit, eg unit numbers or floor space
• there will almost certainly be a condition on the permission requiring development to be carried out in accordance with identified approved plans which will effect a limitation on eg unit numbers and floor space

It is now best practice not to include in descriptions of development specific identifiers or numbers, eg of residential units, or quantum of floor space. The reason being is that it can make it a more complicated approval process if a TCPA 1990, s 73 application proposes to change these aspects of the development. Finney does not mean that these aspects of an approved scheme cannot be lawfully changed, just that these references in the description of development cannot be changed using TCPA 1990, s 73.

References:
R v Coventry CC ex parte Arrowcroft Group [2000] Lexis Citation 5053

Whether the changes to the development sought are lawful is a separate question. In R v Coventry CC ex parte Arrowcroft Group, it was held that:

‘…the council is able to impose different conditions upon a new planning permission, but only if they are conditions which the council could lawfully have imposed upon the original planning permission in the sense that they do not amount to a fundamental alteration of the proposal put forward in the original application.’

The change to the development sought may be perfectly lawful following Arrowcroft, such as amalgamating two small units to make a larger one, or detailed design having improved the net to gross leading to an uplift in floor space.

While the TCPA 1990, s 73 application cannot seek to amend the description of development, these changes can still be applied for. It may be necessary to seek to amend a specific condition that limits eg unit numbers or floor space, and it will almost certainly be necessary to amend the condition that sets out the list of approved plans to substitute new plans showing the revised arrangement.

The question is how is the change to the development described in the TCPA 1990, s 73 application? It is lawful to describe it in the following terms ‘Variation of condition X (unit numbers) and condition Y (approved plans) of permission [original permission reference] for [description of development on original permission]’. If TCPA 1990, s 73 permission is granted, the fact that the changes approved mean that the original description of development no longer reflects the approved scheme is irrelevant. The approved scheme is still lawfully granted. It makes it more of a challenge for purchasers and funders undertaking due diligence to work out what the approved scheme is, but that is just a complication.

Sometimes it will be advisable to change the description of development as well to avoid the disconnect and complication referred to above. In these circumstances there are two options, apply for a fresh planning permission for the whole scheme, or apply under TCPA 1990, s 96A to vary the description of development. The former is generally an unattractive alternative, while the latter is the opposite. TCPA 1990, s 96A application can be applied for at the same time as the TCPA 1990, s 73 application and should have a four week approval period. The determination of TCPA 1990, s 73 application with the revised description of development can then follow. It is to avoid having to jump through this additional hoop that descriptions of development now generally avoid reference to specific identifiers or numbers.

If a TCPA 1990, s 73 permission is granted in the terms set out above, namely: ‘Variation of condition X (unit numbers) and condition Y (approved plans) of permission [permission reference] for [description of development on the original permission]’ the question is asked whether Finney means that description cannot be varied by a further section 73 permission. The answer is technically ‘yes’, but the real question is why would you need to vary it? It is a matter of fact that conditions X and Y were varied. If condition Y needs to be varied again, so what? If the condition numbering has changed so that the ‘plans’ condition is no longer condition Y but condition Z, so what? If a plan was substituted by a TCPA 1990, s 73 permission, and it is sought to substitute the same plan with a later revision number in a subsequent TCPA 1990, s 73 application then there is no problem with this.

The description of development might read:

‘Variation of condition Z (approved plans) of permission [s 73 permission reference] for “Variation of condition X (unit numbers) and condition Y (approved plans) of permission [permission reference] for [description of development on the original permission]”’. The words being, of course, the description of development on the first section 73 permission.

Again, if it is concluded that it is advisable to vary the description of development (perhaps to provide clarity in an overburdened description) then an application under TCPA 1990, s 96A can be used to achieve this.