Building flexibility: the limitations of Section 73 variations

Written on 7 Nov 2019

A recent Court of Appeal decision highlights inflexibility in planning permissions and the need to consider carefully the detail in the description of development at the application stage.

Flexibility in planning permissions and the ability to change a scheme is important for developers but, frustratingly for them, the law in this area has not developed favourably.

Changes to the schemes can be non-material, minor material or material – or can amount to a fundamental alteration. But it can be tortuous working out what a ‘change’ is and the procedure to follow to get its approval. It often come down to a matter of fact and degree and a judgement call by the planning authority.

One thing is now clear following the Court of Appeal’s decision in Finney and Welsh Ministers v Energiekontor (UK) Limited and others [2019] EWCA Civ 1868. Developers should consider carefully the description of development when making an application.

The case related to a wind-farm and the height of the turbine, which was stated in the description of development as being 100 metres (to its tip). A planning condition was attached stipulating that the development be carried out in accordance with an approved plan that showed a turbine at 100 metres tip height. The developer subsequently made a Section 73 application to vary the condition to require compliance with a plan showing a turbine of 125 metres.

The problem is not difficult to spot: the description of the development in new permission(which was granted on appeal) allowed for a turbine of 100 metres but had a condition that approved a 125 metre turbine. There has been much debate as to whether Section 73 can amend the description of a development through a variation of condition – and previous case law had allowed some examples. However, the Court of Appeal in this case made it clear that Section 73 is only able to vary a condition and cannot permit development that is fundamentally different to the description of development. The new permission granted by the inspector under the Section 73 process was granted unlawfully and therefore quashed.

What this case highlights is how crucial it is for developers to consider carefully the description of the development when making applications. Building potential flexibility into the description of development can avoid the need for future changes, whether fundamental, material or non-material. When one takes into account development that is subject to an Environmental Impact Assessment as well, it is even more important to ensure that all reasonable eventualities are considered and assessed.

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