Wet Finishing Works Ltd, R (On the Application Of) v Taunton Deane Borough Council

A planning authority using the Town and Country Planning Act 1990, section 73 may impose different conditions only if they could lawfully have been imposed on the original permission and do not fundamentally alter the original proposal. Whether an alteration is fundamental is a question of fact and degree, primarily for the planning authority, subject to review for irrationality. Section 73 does not authorise alteration of a section 106 planning obligation. Procedural fairness may require consultation before a public authority changes the legal position of a person who holds contingent contractual rights under an existing planning obligation. Relief will not be refused unless it is highly likely that the outcome would not have been substantially different under section 31(2A) of the Senior Courts Act 1981.

The claimant, owner of a listed former cloth-finishing mill, challenged the defendant planning authority’s decision to approve a section 73 application increasing an adjoining housing scheme from 84 to 90 dwellings. A new section 106 agreement replaced the earlier mechanism under which a heritage contribution was to be paid to the claimant for restoration of the mill with an obligation to pay the authority instead. The claimant alleged that the variation exceeded section 73 and that fairness required consultation on the new agreement. Permission had been granted on the procedural-fairness and ultra-vires grounds only.

1. Outcome. The claim succeeded on procedural fairness. The section 73 planning permission was quashed. The ultra-vires challenge failed.
2. Section 73. Section 73 concerns conditions, not planning obligations, so it could not support the challenge to the new section 106 agreement. Different conditions may be imposed only where they could lawfully have been imposed on the original permission and do not fundamentally alter the original proposal. Whether an alteration is fundamental is a question of fact and degree for the planning authority. The court would interfere only if its assessment were irrational. Increasing the number of dwellings from 84 to 90 did not establish irrationality.
3. Procedural fairness. Although the 2012 agreement ran with the land and the claimant’s benefit was contingent, the claimant remained a party to that agreement and the Heritage Landowner. The 2016 agreement materially changed the mechanism for paying the £780,000 contribution by removing the authority’s obligation to pay the claimant. That change altered the parties’ legal positions and affected contingent contractual rights. Fairness therefore required notice of the proposed agreement and an opportunity to comment before it was concluded.
4. Relief. Under section 31(2A) of the Senior Courts Act 1981, relief had to be refused only if it appeared highly likely that the outcome would not have been substantially different. That threshold was not met: consultation might have led to modifications, and the relevant judgments were principally for the planning authority. The section 73 application therefore required redetermination.