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

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.

Reserved Matters approval can be amended

In R (on the Application of Fulford Parish Council) v City of York Council [2019] EWCA Civ 1359 the Court of Appeal has generously confirmed that the statutory power conferred by section 96A of the Town and Country Planning Act (“the Act”) to make non-material changes to a planning permission includes the power to make non-material changes to conditional approvals of reserved matters.

Persimmon Homes’ outline planning permission was granted for approximately 700 dwellings subject to a large number of conditions.  A conditional approval of a reserved matters application was granted by York City Council that included the requirement to submit for approval a detailed Bat Mitigation Strategy prior to any development taking place.  York City Council then approved an application for a non-material amendment that permitted changes to the bat house types and layouts, and changes to the strategy.  In response, Fulford Parish Council brought a judicial review on the basis that section 96A’s statutory power is limited to making non-material amendments to “planning permissions”, and the approval of reserved matters did not constitute a “planning permission”.

Referring to the primary source of the power to grant planning permission (s.70(1) of the Act), the court decided that the grant of outline planning permission is the grant of planning permission defined by the Act and since the grant is “subject to” conditions, the conditions must be seen as an intrinsic part of the grant; therefore the conditional approval of a reserved matters application is itself a condition to which the planning permission has been granted. 

In the court’s judgment:

  1. the “planning permission” referred to in s.96A refers to a package consisting of the grant of planning permission itself, together with any conditions to which it is subject, whether the conditions are imposed at the time of the grant or subsequently; and
  2. the application for an amendment to an approval (or conditional approval) of reserved matters is an application for the alteration of an existing condition, which is expressly permitted by s.96A(3)(b).

Importantly, the court stressed that the power under s.96A is restricted to non-material changes otherwise the need for public participation will again be required and the change will be outside of the powers of s.96A.

Whilst this judgment will be welcomed by developers, a word of caution –  as the term “non-material change” is not defined by the Act it will be important for both developers and local planning authorities to consider sensibly whether proposed scheme amendments can rightly be classified as “non-material changes” especially in those situations where there is organised local opposition to a proposal.  One possible, and ironic, outcome of the case is that authorities become even more cautious about what they will accept as non material amendments.