Section 73 Changes – Don’t Let the Gremlins In

The Court of Appeal’s decision in Finney v Welsh Ministers in late 2019 – that Section 73 permissions cannot alter the description of development – should not have come as a shock.  We noted in the original Lambeth appeal case that S73 should be approached as doing what it says in the 1990 Act – authorising development other than in accordance with conditions imposed on the original grant of permission.

Unusual Restraint

In Finney, the developer had applied for (and obtained) permission for “…two wind turbines, with a tip height of up to 100m“. It appealed against the later refusal of permission under S73 for amendments to conditions to extend the tip height to 125m.  The Inspector considered the merits of the increased height and decided to grant permission, deleting reference to the height in the description of development while doing so (to avoid the fundamental inconsistency between it and the revised conditions that would otherwise result).   The Court of Appeal confirmed that the there is no power to do this (and rejected an earlier High Court decision to the contrary).

None of this should make much difference in practice, because the judgment is simply applying a literal interpretation of the words of Section 73.  


Gremlins creep in because of the way that planning applications are handled.  This is avoidable but sometimes appears to be irresistible. 

Building heights, use classes, floorspace figures and unit numbers rarely need to be included in the ‘operative’ description of development.  They can be controlled by condition. Where Section 73 is later used to amend these parameters, a planning judgement is then needed.  In some cases, this may require more information on impacts (including, where EIA is applicable, additional environmental information). 

There is a tendency to add in all sorts of unnecessary detail when applications are submitted, however.  In Finney, the applicant did this to itself.  Elsewhere, LPAs will clutter the description of development on receipt and refuse to budge until it has been piled high with detail (much of which ironically then fails to make it into conditions). 

There is an open question about whether authorities have the jurisdiction to do this (or whether they simply have to determine the application as submitted, subject to whatever conditions they see fit).  It is moot, because no applicant wants to get off on the wrong foot and so changes are conceded which create inflexibilities.  These can then hamstring the ability to make mundane changes later on. 

Taking away solutions?

Section 96A of the 1990 Act is a useful tool, if used properly.  Unlike the S73 power, S96A is not limited to changes to conditions.  The power simply allows changes to the decision notice (including conditions), as long as they are “not material“.

Descriptions of development can therefore legitimately be decluttered, where changes are – cumulatively – non-material in planning terms.  This is undoubtedly a low threshold, but one which will nonetheless not be breached in many cases.  For example, deleting a use class or unit numbers from a description of development where use and unit numbers are already controlled by condition.  Section 96A was after all introduced in an economic downturn in order to avoid unnecessary fresh planning applications. Although there is no right of appeal against S96A refusal, it provides a sensible basis for changes that – by definition – are trivial.

Post-Finney, doubt is being raised about the use of S96A in this way.  Given that the Court of Appeal recently confirmed in the Fulford case that S96A may be used to make non-material changes to reserved matters approvals, concerns about non-material changes to the planning permission itself (whether the description of development, the conditions or the informatives) need to be put in perspective. 

The real issue for S96A, which is not legal, is whether:

  • as a matter of planning judgement there are land use planning effects that make the change material; and
  • there is an adequate information base to make that assessment.

If this begins to become a blocker to sensible changes to schemes to get them off the ground, Government should issue guidance confirming this position to avoid decelerating planning at a time when it is trying to speed it up.

Planning controversies demand clear reasons

A flurry of decisions on reasons have underlined the need for care in explaining planning decisions, from delegated reports to sensitive areas. Our comprehensive guide to the Oakley green belt case and other decisions is here.

The decision in R (Campaign To Protect Rural England, Kent (CPRE)), v Dover District Council [2016] EWCA Civ 936 is on its way to the Supreme Court. In the meantime, it is worth looking into the Court of Appeal’s approach to the standard of reasons required of an authority granting permission for development of a scale “unprecedented in an AONB” in that case. The judgment confirms that reasons for approval may be required in planning matters where basic fairness demands it, despite the absence of a statutory duty, particularly where significant policy breaches are being entertained. It also highlights the benefits of dealing properly with the need for statements of reasons under the EIA regime.

Controversial proposals

The authority’s officers had recommended a less dense, but – according to its advisors – no less viable approach to delivering housing in the sensitive area.  Members rejected that approach on viability grounds and objectors challenged by judicial review on the basis of inadequate reasons.

No reasons required?

The defendant authority started from the position that there is no duty on planning authorities – unlike the Secretary of State – to give detailed reasons for the grant of permission (adopting the ‘light touch’ approach in R (Hawksworth Securities Plc) v Peterborough City Council & Ors [2016] EWHC 1870 (Admin)) where the standards applicable to an inspector’s decision on appeal were distinguished from merely an ‘administrative’ decisions by local planning authorities).

The Court of Appeal recognised that this approach “needs to be treated with some care. Interested parties (and the public) are just as entitled to know why the decision is as it is when it is made by the authority as when it is made by the Secretary of State.”  In the circumstances of Dover, several factors justified detailed reasons:

  • the nature of protective NPPF policies means that decisions to authorising development which will inflict substantial harm on an AONB must be accompanied by “substantial reasons”;
  • a departure from officers’ advice;
  • the applicability of the statutory duty to make a statement of reasons and mitigation under Regulation 24(1)(c) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011.

Costly admin errors

The Committee minutes in question failed – against that standard – to give legally adequate reasons:

  • firstly, it was unclear whether members accepted their officers’ assessment of harm; if they did, they would have “opted to inflict irreversible harm on the AONB” on the limited material before them;
  • secondly, it was unclear whether they viewed viability issues as a mere risk, which would have made their obligation to address the issue of harm was “all the more acute”;
  • thirdly, it was not clear if they had applied a simple unweighted balance to AONB protections; and
  • finally, they had reached conclusions on visual screening which were “fragile at best and would have to be supported by reasoning a good deal more substantial than the sentence in the minutes”.

EIA goalie?

The judgment helpfully confirms that while the lack of a regulation 24 statement may not necessarily kill a decision where reasons are adequate on the record, it could save it where they are not.

The Supreme Court judgment, when it comes, should provide a definitive position on the basis and scope for reasons for approval. In the meantime, a little transparency and coherence for controversial decisions can only be a sensible approach.

The right to know why

Is there now a presumption that reasons be given for planning decisions? Within the last year, we have seen a surge of significant cases in which an absence of reasons being given for planning decisions has proved to be decisive. This happened despite the abolition in 2013 of the statutory duty to give reasons for the grant of planning permission. While the contexts have varied – ranging from delegated decisions, environmental impact assessment (EIA) development and planning committee decisions contrary to officer recommendation – the outcome has been the same each time: reasons for granting permission should be given.

Read the full article

This article was first published in Property Law Journal (March 2017) and is also available at


Brexit: A week later

flagWhat are the likely effects of the Referendum decision on planning? The real answer is that nobody knows but here is a guess:

  • There will be more devolution to city regions. There is clearly a distrust of Westminster and “experts”. Expect to see devolution being set in more of a sub-regional framework.
  • Although there will be delays, the further drop in interest rates and the need for investment will mean more emphasis on new infrastructure. Now is the time for city regions to refine their infrastructure plans, making sure that they fit comfortably within the National Infrastructure Commission ambitions.
  • More of the investment will be outside London. London has succeeded in part because of the staggering levels of infrastructure investment that have been made. Other regions deserve their turn.
  • The planning system will not change.  There is no “European” element that can be stripped out. Much that is blamed on Europe is, in fact, common sense and best practice around the world. For example, does anyone seriously anticipate that we will not environmentally assess plans for large scale development proposals?  Similarly, we already have international and national commitments on climate change. Expect no change.
  • There will be some siren calls to put the brakes on housing delivery. It will be argued that, with lower levels of immigration, objectively assessed needs will fall. In reality, immigration is unlikely to fall significantly or soon. In fact DCLG figures already assume a material reduction. And, if successful in reducing immigration, the likelihood is that there will be a need to accommodate some of the Brits presently living in Europe.  Expect no change.

Perhaps the greatest effect will be that Parliamentary time will focus on managing the crisis and broader constitutional issues. Hopefully, that means that there will be less time for planning reform and we can all move calmly to a proper plan-led system of the type envisaged by the Local Plan Expert Group.  This should be supported by a slightly simplified CIL regime after the Review with a less febrile property market and one better balanced around the country.

DCO regime faces a real test

Better known as the super-sewer, the Thames Tideway Tunnel (“TTT”) Development Consent Order, granted on 12 September 2014, was a super-sized DCO application.  The scheme covers 25km from Acton to Abbey Mills and with 43 hearing sessions and 1246 representations is by far the largest application to go through the Planning Act 2008 process to date.  Based on recent news reports, it is also now set to be the most contentious DCO so far, with two judicial review challenges lodged.

The first challenger is, unsurprisingly, the London Borough of Southwark.  Thames Water may have been expecting a claim after the Leader of Southwark publicly branded the decision “ludicrous and evil“.

tunnelNothing has emerged yet on the grounds of their challenge but it is a safe assumption that it will focus on the use of Chambers Wharf as a site to drive the main tunnel to the Abbey Mills pumping station, and the impact of the drive site on residential amenity.  The Examining Authority concluded that the use of Chambers Wharf was not justified and weighed against the making of the Order.  The Examining Authority considered that if the option of driving from Abbey Mills (i.e. a reversal of the drive direction) were fully explored there was a good prospect that it would be found to be preferable in terms of overall environmental and community impacts.  While the Secretaries of State noted that the intensity and duration of impact on nearby residential occupiers during the 6 year construction period (including 33 months of night time working) weighed against the making of the Order, they considered that the mitigation package would substantially mitigate those adverse impacts and the selection of Chambers Wharf as a drive site was justified.

The crux of Southwark’s challenge is likely to be the extent to which the Secretaries of State are required to consider alternatives to the applicant’s proposals in the course of their decision making.  This is a fundamental question given that the National Policy Statement for Waste Water (NPS) approves the principle of a tunnel but leaves the specific route, design, layout and construction programme of that tunnel to be determined as part of the DCO application.  The answer will influence the future approach of applicants and objectors.

The second challenger is the Blue-Green Independent Expert Group (“BGIEG”) – an interest group formed by a broad coalition of independent experts.  News reports indicate that their challenge relates to the failure to comply with the public participation requirements of the EIA Directive and EIA Regulations.  BGIEG’s challenge is likely to focus on the precautionary principle (Article 191 of the Treaty on the Functioning on the European Union), obligations arising under the UN Aarhus Convention and the EU Public Participation Directive and criticisms of the robustness and adequacy of the Environmental Statement.

Whether BGIEG continues its argument that the case for progressing the scheme by way of a tunnel has not been proven remains to be seen. During the course of the examination, BGIEG argued that the NPS decision in principle to use a tunnel was made without proper testing of alternatives, including blue-green infrastructure solutions.  The starting point of the inquiry was that contained in the NPS, namely the Examining Authority and the decision maker in undertaking any assessment of the TTT application should do so on the basis that the national need had been demonstrated.  The NPS states that in reaching that conclusion the strategic alternatives have been considered and strategic alternatives did not need to be assessed by the Examining Authority or the decision maker.  If a court were to hear a challenge, let alone allow a challenge, on this ground it would deal a heavy blow to the sanctity of NPSs.

Despite being a long-standing objector, Hammersmith & Fulham has notably not challenged the decision.  They may be sitting back to watch the Southwark showdown first.

Success for Dentons at Rushden Lakes

lakesThe Secretary of State has granted permission for the £50million,
465,000 sq ft retail and leisure redevelopment of Rushden Lakes in Northampton.  Dentons acted for LxB throughout the process, including the 12 day Call In Inquiry held last year in response to demands for the Government to step to a refuse permission by 3 local authorities and several institutional landowners.

Senior Associate Roy Pinnock said “This scheme has been a real road test for the National Planning Policy Framework – are we prepared to say Yes to growth when plans are out of date and no effort is being made to address needs? The Secretary of State’s decision is a helpful milestone and the scheme is one of the most complex to rely on the presumption in favour of sustainable development so far.

Both the circumstances and the scheme are exceptional – the site is over 200 hectares and the scheme has been designed from the outset to make the most of nature conservation, transport and sustainability benefits which are now secured by the planning framework for the site. It has been great to work on a scheme with overwhelming local popular support and support from Natural England, the Highways Agency, local traders and the nearest local authorities.”

Jon McCarthy, of LxB Properties, said: “We have always seen the sense in the Rushden Lakes scheme. It has been refreshing to build such a positive relationship with the local community and so many of the public bodies involved, with the aim of realising the benefits it will bring. Dentons did a fantastic job working with the rest of our team to keep our case on the best footing – the fact that the Inspector and the Secretary of State agreed with our case bears that out”.

Roy Pinnock, Melanie Blanchard and Stephen Ashworth led the process for LxB.

EIA changes are welcome … in part

Some of the changes to the EIA regime, which look likely to come into effect in the UK in 2016, are welcome.  Several will help streamline a process that is sometimes so obscured by extraneous information that it offers little practical support for decision making. There is still a need for the Government to follow up on its commitment in the 2012 and 2013 Autumn Statements to reforms, though, to ensure EIA is fit for purpose.

  • signScreening: The revised Directive will require a Screening Report to be prepared and may lead to the screening period in the UK being doubled (to 12 weeks).  The extended timeframe is unwelcome, but the requirement for clear screening information reflects what should already be good practice in seeking reduce paperwork by narrowing the issues for EIA or avoiding it altogether.  The revised Directive notes that whilst formal consultation is not required for screening, it is good practice for authorities to take unsolicited comments into account.
  • Scoping: It is common to assess impacts across a large number of disciplines, only to conclude that no significant effects are likely for most of them.  That is wasteful, unnecessary and often gets in the way of good planning. It very often suggests that a lazy or incorrect approach to screening has been adopted. As the Planning Practice Guidance now recognises, single or limited issue Environmental Reports should be much more common, justified by robust screening information. The UK courts are clear that where robust screening information is provided, they will be very reluctant to trespass on planning judgments about the likelihood of significant effects.  Careful screening reports are usually significantly cheaper and quicker than a bloated ES.
  • Drop kick: some of the requirements have been dropped out following pressure from member states (particularly the UK). Mandatory scoping and a wide ranging assessment of all reasonable alternatives have been dropped. Shale development has also escaped the proposed mandatory assessment, albeit that robust screening will be still required.
  • Alternatives: The treatment of alternatives is often muddled – with inaccurate information being volunteered in ES work about the alternatives that have in fact been considered. As a result of pressure from the UK Government the duty will remain, as it currently stands in English law, simply to assess those alternatives that were actually considered by the developer. The ‘do nothing’ scenario should very rarely feature in ES work. Where alternatives were considered, more detailed analysis will now be required of their relative effects.  Given the iterative design process for large schemes, this will present some challenges for assessors.
  • More clarity needed: the Government has been pushing since late 2012 to set thresholds for avoiding screening altogether (and confirmed its continued intention to do so in January). The revised Directive will now enable it to do exactly that, albeit not at the scale the Government appears to wish.

Environmental Impact Assessment Directive: tinkering one step closer

The European Parliament and the Council of Minsters have approved the Commission’s proposed changes to the EIA Directive. The Directive covers more than 200 types of project, including bridges, ports, motorways, landfill sites and some intensive agricultural operations, as well as urban development projects. The Directive has been amended three times since its adoption in 1985 and was harmonised in 2011.

Reform agenda

Following lengthy consultation, the European Parliament published a revised draft Directive in October 2013 with the aim of making EIA clearer, ensuring assessments both take account of biodiversity and climate change and involve the public.  The European Parliament has now agreed a significantly diluted version. Key changes to the regime will include:

  • signsNew environmental topics: including biodiversity, climate change, land, human health and natural and man-made disaster risk
  • More detailed screening procedures
  • More detailed analysis of reasonable alternatives considered by the developer
  • A requirement for EIA to be either undertaken or reviewed by accredited experts
  • Greater clarity on mitigation
  • Monitoring requirements will apply for higher risk projects
  • Specific timeframes for key stages of the EIA process.


The changes will come into force 20 days after publication in the European Union’s Official Journal and the UK will have 3 years to transpose it through any changes to the Town and Country Planning (Environmental Impact Assessment) Regulations 2011. The Government has indicated that it will make changes in 2016.

Demolition job

The Government has published a new Demolition Direction, which confirms that permission is only required for demolition of buildings larger than 50m3 GEA.  This reflects the position following the Court of Appeal’s judgment in the R (Save Britain’s Heritage) v CLG [2011].  The court was concerned in Save that by carving out various buildings (including those that were listed, in a conservation area, or non-residential), the previous 1995 Direction avoided proper consideration of the need for Environmental Impact Assessment. EIA is not required for Listed Building or Conservation Area Consents.

The publication of the new Direction is a reminder that when demolishing buildings, owners need to be aware of the current position:

  • Size is key: building demolitions over 50m3 GEA are development requiring planning permission.
  • Permitted Development rights are generally* (but see EIA, conservation areas, PD below) available, but the PD regime requires owners to seek ‘prior approval’ from the local planning authority on the demolition method is now engaged.
  • EIA*: PD rights do not apply to EIA development.  Reliance on PD rights and ‘prior approval’ will often require some form of EIA screening.
  • Conservation Areas*: The requirement for Conservation Area Consent for demolition of buildings in a CA was abolished in England with effect from 1 October 2013.  PD demolition rights no longer apply in these areas, however, demolition will be an offence unless the building is under 115m3 GEA (or must be demolished due to a s106 agreement, enforcement notice or planning condition).  One oddity of the changes is that demolition of buildings of less than 115m3 GEA in these areas still require a planning permission, albeit that the criminal offence does not apply.
  • PD Games: Several authorities have used the post-Save need to rely on PD baringrights to issue Article 4 directions withdrawing demolition rights, to protect buildings that are neither listed nor in a conservation area.  The Baring Hall Hotel in Lewisham was protected from the use of PD rights by an Article 4 direction.  The planning authority’s subsequent refusal of express permission to demolish was upheld by the Planning Inspectorate on appeal.
  • Viability: clearing a site may be desirable to prevent the building becoming listed (either as a heritage asset or an Asset of Community Value).  In most cases, though, doing so will significantly reduce the Existing Use Value and risk creating an artificially low benchmark for development profitability when running toolkit appraisals in connection with affordable housing and other obligations.
  • Community Infrastructure Levy: demolished floorspace can be offset against CIL liability, but only where it was on-site at the relevant ‘first permits’ date (and part of it had been in continuous lawful use for at least six months during the preceding three years).  This will often be the point at which pre-commencement requirements are discharged. Demolishing too early, particularly where it is done in reliance on PD rights, will kill off what might be a substantial CIL saving.  Developers should ensure their phasing conditions and overall strategy are carefully drawn to maximise the ability to offset existing floorspace and proceed with site preparation work, whilst limiting the cashflow burden of CIL.  For many schemes this requires careful thought.

Bar still rising for EIA challenges

There has been a steady flow of cases winding back the scope for legal challenges on the grounds of defective Environmental Impact Assessment (EIA).  The recent judgment in R (Bishop’s Stortford Civic Federation) v East Hertfordshire District Council [2014] EWHC 348 Admin is the latest.

The case concerned Henderson’s £105m retail and residential proposals for local authority land at Bishop Stortford.  The Civic Federation challenged the grant of permission on several grounds, including that the development control committee’s August 2011 approval was improperly influenced by the speech of a executive member responsible for the council’s finances, who had been instrumental in negotiating a confidential deal with Henderson.  The Court rejected the claim that his intervention made it impossible for the committee to ignore the council’s vested financial interest in the development and take a decision based on purely planning grounds. The judge notably ‘deplored’ the forensic analysis of the political debate relied on by the claimants, which risked undermining the democratic process.

The claim also related to updated EIA material submitted by Henderson but not publicised by the Council. The Environmental Statement (ES) included a substantial planning policy section and the applicant felt that it was necessary to submit a policy addendum to address the changes arising from final publication of the NPPF.  The EIA Regulations require substantive updates to an ES to be publicised (either as ‘further information’ – requested by the planning authority – or ‘other information’ – submitted voluntarily). This did not happen and the objectors sought a quashing order on the basis of a technical breach.

The court held that the submission of an ES Addendum because of the adoption of the redevelopmentNPPF did not trigger the requirement because it was not substantive information.

Importantly, the judge also held that, even if there had been a breach of the EIA Regulations, he would have exercised the discretion not to quash the permission given the technical nature of the breach and the lack of significant prejudice to the claimant. Although not part of the formal judgment, this confirms the willingness of the High Court to move away from the more restricted position adopted since Berkeley v Secretary of State for the Environment (No.1) [2001] on the availability of the discretion where there are breaches of EIA requirements, towards the more flexible position put forward by Lord Carnwarth in the Supreme Court judgment in Walton v The Scottish Ministers [2012] UKSC 44.

As well as highlighting the need to limit legalistic nit-picking over what is said during planning committee debates (in contrast to the specific resolutions resulting), the case also highlights the level of unnecessary policy information now routinely included in ES work and the potential dangers of doing so where updates then become necessary, which themselves become an issue requiring further publicity. It also underlines a judicial reluctance to grant a remedy for technical ES defects where in the real world they cause no harm.