Town and country planning – Planning permission – Variation – Section 73 of Town and Country Planning Act 1990 – Claimant applying to vary plans for construction of new dwelling under extant planning permission – Local authority’s refusal of application upheld by planning inspector – Appellant applying to quash decision – Whether inspector lawfully concluding that proposed variation would not give rise to conflict with description of development in permission – Application granted
The second defendant local authority refused the claimant’s application under section 73 of the 1990 Act to vary the plans for construction of a new dwelling under an extant planning permission at The Beach House, Finnygook Lane, Portwrinkle, Cornwall.
An inspector appointed by the first defendant secretary of state dismissed the claimant’s appeal. The claimant applied to quash that decision under section 288 of the Town and Country Planning Act 1990
The main issue was whether the inspector lawfully concluded that the application would give rise to a fundamental variation to the permission such that the application fell outside the scope of section 73, in circumstances where the proposed variation would not give rise to any conflict with the description of the development in that permission. It raised a question as to the correct statutory interpretation of that provision.
Held: The application was granted.
(1) Section 73 of the 1990 Act allowed for applications to vary or remove conditions associated with a planning permission. The Planning Practice Guidance (PPG) advised that one of the uses of a section 73 application was to seek a minor material amendment, where there was a relevant condition that could be varied. There was no statutory definition of “minor material amendment” but it was likely to include any amendment where its scale and/or nature resulted in a development which was not substantially different from the one which had been approved.
Section 73 could not be used to make minor material amendments if there was no relevant condition in the permission listing the originally approved plans. It was possible to seek the addition of a condition listing plans using an application under section 96A of the 1990 Act. That would then enable the use of a section 73 application to make minor material amendments.
The issue was whether section 73 permitted the proposed change to a condition permitting what the inspector treated as involving a fundamental variation to the design of the single dwelling on the site that was otherwise permitted by the operative part of the planning permission. It was important to distinguish between the interpretation of the planning permission and the scope of the power under section 73 as it applied to any particular planning permission.
(2) In light of Finney v Welsh Ministers [2019] EWCA Civ 1868, the requirement that a section 73 application be confined to applications for non-compliance with a condition was significantly restrictive in and of itself. Section 73 could not be used to vary the operative part of a planning permission as it was concerned with non-compliance with a condition.
The power under section 73 was therefore limited. It was not necessary to introduce or read in further limits on its scope which were not otherwise expressed in the section itself. If, as here, an application for non-compliance with a condition did not lead to any conflict or inconsistency with the operative part of the permission, it was difficult to see why it was objectionable in light of the statutory purpose of section 73 and the 1990 Act itself.
Section 73 was clearly intended to enable a developer to make an application to remove or vary a condition, provided that the application did not conflict with the operative part of the planning permission. Any such variation application would be subject to the necessary procedural requirements for its consideration which, for example, enabled representations to be received.
(3) The wording of section 96A of the 1990 Act was informative as part of the statutory context. Unlike section 73, it was introduced as a power to amend a planning permission generally (including the operative part of the permission). Parliament expressly constrained its scope to “non-material amendments”. By contrast, no such limitation had been imposed on the scope of section 73 where applicable, but it was confined in scope to applications for non-compliance with conditions.
Provided there was no inherent conflict or inconsistency with the “operative part” of the planning permission, in this case the construction of a single dwelling, the planning merits of that proposed change could be assessed on its merits. No such assessment had occurred.
The operative part of the planning permission was for the construction of a single dwelling on the site. The proposed revision to the architectural style of the dwelling (however different in nature) did not conflict with that.
(4) A condition should only generally be imposed on a planning permission where (amongst other things) it was necessary for the development to be acceptable in planning terms.
A decision maker might lawfully conclude that the proposed variation, by substituting plans with a different form and architectural style, could be described as a “fundamental variation”. But there was no change in the basic principle of what was being permitted on the site, namely a single dwelling. The inspector had not properly grappled with why what he saw as a fundamental variation in the form and style of the dwelling in fact amounted to a fundamental variation to the permission itself (as opposed to the conditions affecting that permission).
Even if it was lawful to apply a test of fundamental variation, the court was not persuaded that the inspector applied such a test. There was sufficient doubt about that to justify quashing the decision on the basis that he misdirected himself by reference to the PPG and its concept of “minor material amendments”.
(5) The PPG introduced a concept of “minor material amendment” where no such expression existed in the statutory scheme, putting an impermissible gloss on the scope of section 73 which had the propensity to misdirect the reader, in this case the inspector.
The court was not persuaded that the inspector’s decision would necessarily have been the same if he had not misdirected himself that the word “minor” qualified the extent to which material changes under section 73 were permitted. The inspector would not necessarily have concluded that the amendments being proposed were “fundamental” if he had appreciated that section 73 was not limited in scope to “minor material amendments”. The inspector erred in law and his decision should be quashed.
The claimant appeared in person; Ruchi Parekh (instructed by Government Legal Department) appeared for the first defendant. The second defendant did not appear and was not represented.
Eileen O’Grady, barrister
