Finney v Welsh Ministers & Ors (Rev 1)

Section 73 of the Town and Country Planning Act 1990 permits a new planning permission for the same development as previously permitted, subject to different conditions. It does not empower a planning authority or inspector to alter the description of the development in the operative part of the original permission.

A replacement condition must be one that could lawfully have been imposed on the original permission. It cannot alter the extent or nature of the permitted development or conflict with its operative description. These limits are questions of statutory power, not matters of planning judgment governed by a test of whether the alteration is fundamental.

A developer obtained permission for two wind turbines with a tip height of up to 100 metres. It later applied under section 73 of the Town and Country Planning Act 1990 to vary a condition referring to an approved plan, so as to permit turbines up to 125 metres high.

The local authority refused the application. On appeal, an inspector appointed by the Welsh Ministers granted permission, substituted the revised plan and removed the 100-metre limitation from the description of the development.

Sir Wyn Williams rejected a judicial review challenge to that decision. The appellant appealed to the Court of Appeal. The central issue was whether section 73 authorised the inspector to alter the description of the development in the operative part of the original permission.

1. Appeal allowed. The inspector's decision was quashed because the permission she granted was beyond the power conferred by section 73 of the Town and Country Planning Act 1990. David Richards and Arnold LJJ agreed with Lewison LJ.

2. Section 73(1) concerns permission for development without compliance with conditions attached to an earlier permission. Section 73(2) requires the decision-maker to consider only the question of conditions. Its natural meaning therefore excludes alteration of the description of the development itself. A permission under section 73 is an independent permission for the same development as previously permitted, but subject to new or amended conditions. The reasoning in Lambeth LBC v Secretary of State for Housing, Communities and Local Government [2019] UKSC 33 was applied.

3. The operative grant identifies what development is permitted, while conditions regulate how that development may be carried out. A replacement condition must be one that could lawfully have been imposed on the original grant. A condition is invalid if it alters the extent or nature of the development permitted.

4. Leaving the original description intact would have created a conflict between permission for a 100-metre turbine and a condition requiring conformity with a plan showing a 125-metre turbine. The inspector attempted to avoid that conflict by removing the height limit from the description. Section 73 did not authorise that step.

5. The limitation is a matter of statutory interpretation, rather than a question of planning judgment depending on whether the change is a fundamental alteration. The analysis in R (Vue Entertainment Ltd) v City of York Council [2017] EWHC 588 (Admin) was correct. To the extent that R (Wet Finishing Works Ltd) v Taunton Deane BC [2017] EWHC 1837 (Admin) treated the question as one of fact and degree for the planning authority, it was wrong.

6. The test in Bernard Wheatcroft Ltd v Secretary of State for the Environment (1982) 43 P & CR 233 was not the correct criterion under section 73. That case concerned an undetermined application, a reduction in development and the protection of consultees, rather than the statutory restriction applicable to an existing permission. A non-material change may instead be made under section 96A. A material change requires a fresh application.

1. Court of Appeal (Civil Division): Allowed the appeal and quashed the inspector's decision as beyond the power conferred by section 73 of the Town and Country Planning Act 1990: [2019] EWCA Civ 1868.
2. High Court, Planning Court: Sir Wyn Williams rejected the challenge to the inspector's decision. No neutral citation is stated in the judgment.
3. Welsh Ministers: An appointed inspector allowed the developer's appeal against the local authority's refusal and granted permission for the revised scheme.
4. Carmarthenshire County Council: Refused the developer's section 73 application.