Finney v Ministers & Ors

Under section 73 of the Town and Country Planning Act 1990, a planning authority may impose different conditions only if it could lawfully have imposed them on the original permission and they do not create a fundamental alteration of the original proposal. A section 73 permission may lawfully require corresponding changes to the wording of the earlier permission. The statutory power should not be applied in an over-technical or inflexible manner. Whether a fundamental alteration has been considered may be inferred from the decision read as a whole, including a detailed comparison of the original and proposed development. Relief must be refused under section 31(2A) of the Senior Courts Act 1981 where it is highly likely that the outcome would have been substantially the same.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s decision allowing an appeal under section 73. The appeal permitted two wind turbines to increase in height from 100 metres to 125 metres by varying a condition requiring compliance with an approved plan. The claimant argued that the inspector had no power to approve a condition contradicting the operative terms of the earlier permission and had failed to consider whether the variation was a fundamental alteration of the original proposal. The court considered the scope of section 73 and the effect of R v Coventry City Council, ex p Arrowcroft Group plc, [2001] PLCR 7, R (Wet Finishing Works Ltd) v Taunton Deane Borough Council, [2018] PTSR 26, and R (Vue Entertainment Ltd) v City of York Council, [2017] EWHC 588 (Admin).

1. The application was dismissed. The inspector’s decision was not quashed.

2. The court accepted that the ratio of R v Coventry City Council, ex p Arrowcroft Group plc, [2001] PLCR 7, is that section 73 permits different conditions only where the conditions could lawfully have been imposed on the original permission and do not amount to a fundamental alteration of the original proposal.

3. The court approved the approach in R (Wet Finishing Works Ltd) v Taunton Deane Borough Council, [2018] PTSR 26. A section 73 variation may be lawful even though it requires the terms of the earlier permission to be expressed consistently with the varied condition. A contrary approach would apply section 73 in an over-technical and inflexible manner.

4. The court accepted the result in R (Vue Entertainment Ltd) v City of York Council, [2017] EWHC 588 (Admin), insofar as it applied the Arrowcroft principle. However, the further proposition that section 73 cannot be used where the grant itself must change was not accepted and was not part of the ratio of that decision.

5. The inspector did not expressly address the fundamental-alteration issue. Nevertheless, her decision contained a detailed comparison between the original and proposed schemes and concluded that the larger turbines caused no additional planning harm. It was therefore proper to infer that she had considered the issue and concluded that the variation was not fundamental. Even if she had failed to do so, section 31(2A) of the Senior Courts Act 1981 required relief to be refused because it was highly likely that she would have reached the same result.

First-instance judicial review proceedings under section 288 of the Town and Country Planning Act 1990. The judgment does not state any prior appellate decision.