Think carefully about the description of a proposed development: Court of Appeal restricts ability to make changes under section 73

In the decision of Finney v Welsh Ministers (November 2019) the Court of Appeal has made it clear that where a developer wishes to amend a scheme in a way which requires a change to the description of the development on the face of the planning permission, then an application under Section 73 of the Town and County Planning Act will not be appropriate.

A section 73 application can only be used to modify or remove planning conditions. It cannot be used to alter the nature of the development which is permitted.

This means amendments to the description of the authorised development are no longer appropriate despite the historic practice on the part of some planning authorities (and indeed in this case an inspector on behalf of the appeal authority (the Welsh Administration)) to agree to such arrangements. In this case, a wind farm development needed amending (amongst other things) to increase the height of the turbines above that specified in the original description.

Developers need to consider in the light of this decision, in any particular scenario, whether a change will need a full planning application or an application under Section 73 or whether it could more properly be dealt with as a non-material amendment under Section 96A.

There remains some uncertainty about whether a non-material amendment under Section 96A could in fact still be used to make minor changes to the description of the development in a planning permission.

The decision in the Finney case clearly reflects the strict wording of Section 73 but it does make it harder for developers and local planning officers to try to find a pragmatic way forward when dealing with minor changes.

One side-effect of the decision may be to encourage developers to describe their proposed development in broad terms, so far as is compatible with retaining clarity, sufficient to allow a degree of flexibility for the future.

This would allow greater freedom to make minor modifications either to plans or other features of the development so long as they are not inconsistent with the description of the development which is set out in the initial planning permission. An over-prescriptive description of the development may inadvertently tie the hands of developers should amendments be needed later.