The Use (and Abuse) of Section 73

February 12, 2020

By Peter Dixon

The procedure in Section 73 of the Town and Country Planning Act 1990 permits a developer to apply for planning permission to carry out development already authorised by an extant planning permission without complying with one or more of the conditions of that permission.

If planning permission is granted, the developer obtains a new planning permission for the same development as before, but subject to different conditions.

Because the development itself is not in issue, but only the conditions regulating it, on an application under Section 73 the decision-maker’s jurisdiction is limited to considering the need for the conditions in question.

In January 2016 Energiekontor (UK) Ltd applied to Carmarthenshire County Council for planning permission for the installation and 25 year operation of two wind turbines with a tip height up to 100m (and for various other matters) and in March 2016 the Council granted full planning permission for “the development proposed by you as shown on the application form, plans and supporting documents.” The planning permission was subject to a number of conditions, one of which required the development to be carried out in accordance with certain plans (‘the Plans Condition’).

In August 2016 the company made an application under Section 73 for the removal or variation of the Plans Condition “to enable a taller turbine type to be erected” with the substitution of a new plan showing a turbine type with a tip height of 125m.   The Council refused permission and the company appealed. The Inspector accepted jurisdiction and allowed the appeal finding that the additional impacts of the higher turbines would be acceptable and granting permission on the basis of a description which excluded any reference to height and a condition requiring compliance with a plan showing a 125m high turbine.

A third party objector challenged the decision on the issue of jurisdiction, contending that the proposed increase in turbine height could not be entertained under a Section 73 application because the initial planning permission had been a full planning permission for turbines of a specified height, rather than a permission for turbines of unspecified height regulated by a condition imposing a height limit by reference to an approved plan, which is how the Inspector had considered the appeal.  The challenge was rejected by Sir Wyn Williams at first instance, noting that the point had not been raised before the Inspector.

The Court of Appeal disagreed with the first instance decision and allowed the challenging, quashing the grant of the Section 73 planning permission, finding that the Inspector had acted outside her powers in amending the description of the development and that had she not done so, but allowed the substitution of the new plan, the associated condition would have been unlawful because it would have permitted development beyond the scope of the initial planning permission.  Section 73 enables planning permission to be granted for the same development as that authorised by an earlier planning permission, subject to different conditions.  It does not enable planning permission to be granted for a different development, albeit similar in character to the original.

Case Ref:      Finney v (1) Welsh Ministers (2) Carmarthenshire County Council (3) Energiekontor [2019] EWCA Civ 1868