Section 73 Applications & Finney vs Welsh Ministers Judgement

The Court of Appeal reversed the High Court’s decision in Finney v Welsh Ministers [2019] EWCA Civ 1868. The effect of the High Court decision had been that Section 73 (S73) of the Town and Country Planning Act 1990 could be used to vary not just the conditions to a planning permission, but also the description of the development itself. The Court of Appeal has, however, ruled that to vary the description of development is outside the remit of S73.
Going forward, it will be important to consider the description of development at the planning application stage. The Applicant is likely to seek as much flexibility as possible in the description of development, but this must be sufficiently detailed to allow the proposals to be understood for the purposes of consultation.

Local Planning Authorities may seek to have more precise terms included in the description of development. Indeed, the National Planning Practice Guidance notes identify that before publicising and consulting on an application, the LPA should be satisfied that the description of development provided is accurate. Essentially though, the LPA should not amend the description of development without first discussing any revised wording with the Applicant or their Agent. This discussion needs to consider the implications of Finney and changes to the wording may need to be resisted.

To allow the certainty required, substantive detail can be controlled by conditions to future planning application which could then be subject to S73 application without amendment to the description of development.

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John HelyarSection 73 Applications & Finney vs Welsh Ministers Judgement