Amending planning permission - in depth - Gateley
In depth

Amending planning permission

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Making a planning application involves cost, delay and risk. Often a planning permission will not be “right first time”, or even if it is, changing circumstances will mean that it needs altering before development is completed.

Altering the terms of a planning permission will usually be cheaper, quicker and less risky than starting from scratch and applying for planning permission again.   

In Finney v Welsh Ministers [2019] EWCA Civ 1868 the Court of Appeal made it harder to “amend” planning permission using the cheaper, more focussed process in section 73 of the Planning Act.

What happened? 

Energiekontor - a wind energy business - applied to Carmarthenshire Council for planning permission for “Installation and 25 year operation of two wind turbines, with a tip height of up to 100m."

 Planning permission was granted subject to conditions. Condition two required the development to be carried out in accordance with plans including one showing a wind turbine with a tip height of 100m.

Energiekontor then submitted an application under section 73 to amend the reference in condition two to that plan, so that it would refer instead to a new plan showing a turbine with a tip height of 125m. 

After a planning appeal, a section 73 planning permission was granted for that amendment by an Inspector on behalf of the Welsh Ministers. Mr Finney challenged the lawfulness of that decision. 

What was the issue before the Court?  

The question was whether the Inspector was allowed to use section 73 to approve an increase in the turbine maximum tip height when a maximum tip height of up to 100m had been specified in the description of development when the original planning permission was first granted.

What did the Court decide? 

The Court of Appeal decided that it is not open to a local planning authority or an Inspector to vary planning conditions using section 73, if the variation would mean that the development would then differ from its description on the underlying planning permission.

Because the maximum vertical tip height of 100m reached by a turbine blade was part of the description of the development itself as it appeared on the face of the planning permission, substituting in a new plan with a higher tip height by changing the wording of the planning condition which required adherence to the various named plans was not therefore permissible.  

In Finney v Welsh Ministers [2019] EWCA Civ 1868 the Court of Appeal made it harder to “amend” planning permission using the cheaper, more focussed process in section 73 of the Planning Act.

What happened? 

Energiekontor - a wind energy business - applied to Carmarthenshire Council for planning permission for “Installation and 25 year operation of two wind turbines, with a tip height of up to 100m”. 

Planning permission was granted subject to conditions. Condition two required the development to be carried out in accordance with plans including one showing a wind turbine with a tip height of 100m.

Energiekontor then submitted an application under section 73 to amend the reference in condition two to that plan, so that it would refer instead to a new plan showing a turbine with a tip height of 125m. 

After a planning appeal, a section 73 planning permission was granted for that amendment by an Inspector on behalf of the Welsh Ministers. Mr Finney challenged the lawfulness of that decision. 

What was the issue before the Court?  

The question was whether the Inspector was allowed to use section 73 to approve an increase in the turbine maximum tip height when a maximum tip height of up to 100m had been specified in the description of development when the original planning permission was first granted.

What did the Court decide?

The Court of Appeal decided that it is not open to a local planning authority or an Inspector to vary planning conditions using section 73, if the variation would mean that the development would then differ from its description on the underlying planning permission.

Because the maximum vertical tip height of 100m reached by a turbine blade was part of the description of the development itself as it appeared on the face of the planning permission, substituting in a new plan with a higher tip height by changing the wording of the planning condition which required adherence to the various named plans was not therefore permissible.  

Why does it matter? 

A section 73 application:

(i) Limits the scope of what the local planning authority or Inspector can consider to the planning conditions only – the principle of the development cannot be questioned under section 73; 

(ii) is subject to a relatively low fixed application fee only, whereas an application under section 70 is subject to the higher application fees often varying according to the size of the development; for a larger scheme the difference between a section 73 application fee and the higher section 70 application fee may be tens of thousands of pounds;

(iii) is subject to fewer formal requirements as apply to an application for planning permission or outline planning permission. 

For landowners and developers who want to make material amendments to a development for which they already have planning permission, Section 73 is therefore an important targeted alternative to getting new planning permission under section 70; by reducing the scope of what can be done using section 73, the Court of Appeal has restricted their ability to amend their developments cost-effectively. 

Is the Finney litigation over? 

Not necessarily. 

Both Energiekontor and the Welsh Ministers are understood to have asked the Supreme Court whether it is prepared to consider the case, and the Supreme Court’s decision on whether it is willing to look at the matter is awaited.

What should landowners and developers do in the meantime? 

Landowners and developers applying for planning permission for a particular development for the first time should consider the following: 

(i)    describing the development on the application form in general language and without numeric values within the description itself;

(ii)    for any development involving buildings, consider applying for planning permission in outline and then if the details have to be amended before the development is carried out the opportunity to make multiple alternative reserved matters applications within the appropriate timeframe can be used;

(iii)    consider applying for permission-in-principle and then seeking approval of technical details later.
If a full planning permission has already been given but it is necessary to amend the scheme, landowners and developers should consider: 

If a full planning permission has already been given but it is necessary to amend the scheme, landowners and developers should consider: 

(iv)    using section 96A of the Planning Act to affect a non-material amendment whenever possible; this is the most cost-effective and streamlined way of amending a scheme in these circumstances. Whether or not a proposed amendment is “non-material” will vary from scheme-to-scheme but importantly section 96A can be used to alter planning conditions so substituting a plan where referenced in a planning condition is permissible in principle using section 96A;

(v)    using section 96A and section 73 in sequence. If section 73 appears unavailable because the amendment would change the description of the development on the planning permission, provided that the local planning authority is satisfied that it is not a material change then the description itself can be amended using section 96A. That can pave the way for an application under section 73 to substitute in new plans if the council’s view is that those actual proposed changes would be material and so do require consideration within the context of the planning conditions;

(vi)    using section 73 to substitute a plan or plans referenced in a planning condition where the amendments to the scheme would not affect the description of the development on the original planning permission. The Court of Appeal’s decision in the Finney Case does not prevent this but only rules out plan substitutions which would be inconsistent with the written description of the development authorised by that original planning permission in the first place. 

More guidance

The National Planning Practice Guidance sets out the Secretary of State’s advice respecting amending planning permission under the heading “Flexible Options for Planning Permission”.

If you have any specific queries that you would like guidance on, please get in touch with our expert listed below.

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