Michael Dempsey discusses whether two recent decisions are indicative of something more fundamental about section 73 and how it is used and understood in practice.
Undoubtedly two of the most eye-catching planning judgments last year were Lambeth v Secretary of State for HCLG and Finney v Welsh Ministers. Both were upper court decisions about section 73 of the Town and Country Planning Act 1990.
The facts of Lambeth were those of a ‘classic’ section 73 case: A retail premises was originally authorised subject to a planning condition restricting sales to certain types of non-food goods. This was followed by a series of section 73 consents, the last of which (a 2014 consent) failed to restate any of the conditions from the previous consents, including the restriction on the sale of goods. This omission threw up – via a subsequent certificate of lawfulness application – the vexed issue of what conditions applied in these circumstances, i.e. whether the premises could now lawfully be used for an unrestricted retail use on the basis that the 2014 consent did not contain any condition restricting the goods which could be sold.
The Supreme Court overturned the Court of Appeal’s rejection of the Council’s legal challenge to the certificate of lawfulness granted on appeal. The Court of Appeal had founded its judgment on the well-established position that, as a matter of law, a section 73 application results in a fresh planning permission. The Supreme Court, whilst accepting this legal position, held that the 2014 consent needed to be interpreted at face value - which in this instance was a consent for the variation of one condition only, with nothing to indicate that any other conditions were discharged or removed. In this regard the Court considered that the 2014 consent was clear and unambiguous and noted that this interpretation was consistent with the scope of the section 73.
By applying this reasoning to navigate around the problem posed by the legal effect of section 73, there is a sense that the Supreme Court was attempting to find a way to rescue the Council from a classic pitfall associated with section 73. However, the (presumably unintended) significance of this judgment is that it introduces potential uncertainty about the interpretation – and standalone nature - of individual section 73 consents; certainly Lambeth raises the possibility that, in situations where the operative consent for a development is identified as a section 73 consent, there may be circumstances where planning conditions on historic permissions could still remain in play notwithstanding that they do not appear on the operative consent.
Turning to Finney, this is the case where a section 73 consent granted by the Welsh Ministers to amend the height of wind turbines stated on the face of the original consent was quashed by the Court of Appeal on the basis that changing the description of development is outside the scope of section 73.
The Court’s decision is notable because it is at odds with how section 73 was increasingly being used in practice and, indeed, apparent judicial relaxation around the scope of section 73 signalled by the High Court decision in Wet Finishing Works v Taunton Deane BC the previous year.
By reaffirming previous law on the scope of section 73 – and effectively indicating that Wet Finishing Works was wrong to the extent that it held otherwise – Finney’s significance lies in its practical implications for the use of section 73 to vary schemes going forward and flexibility within the planning system generally.
Whilst both Lambeth and Finney concerned section 73, a key difference between the two is that Lambeth is about the legal effect of section 73, whilst Finney is about its scope. Interestingly the two judgments go in opposite directions in terms of how they are rationalised and the certainty that they create for the planning system and yet, for all that, both have negative practical implications.
In particular, by putting the onus on the interpretation of the individual consent to tidy up the specific mess that arose in Lambeth, the Supreme Court has created the possibility of a bigger problem, potentially muddying the waters around the interpretation of section 73 consents vs historic consents. Finney, by contrast, is a ‘black letter law’ decision that makes it crystal clear that, as a matter of statutory interpretation, section 73 cannot be lawfully used to amend the description of development. However, the decision cuts across how section 73 was increasingly being used by developers and local authorities in practice and has the immediate effect of removing some flexibility from the system.
A bigger problem?
Stepping back, Lambeth and Finney join a large and growing body of case law on section 73 which, given that this legislation is now 30 years old, certainly speaks to something problematic about the way that it is understood and applied in practice. This “problem child” nature can perhaps be distilled down to two specific things:
- The odd relationship between the scope of section 73 and its legal effect, i.e. the fact that section 73 is a power to vary or remove conditions on an existing permission yet results in a free-standing planning permission independent of the original consent; and
- The fact that the only other statutory power to amend existing planning permissions is confined to non-material amendments (i.e. the power in section 96A), which has led to even the Government advising that section 73 can be used as a workaround to make ‘minor material amendments’ to existing planning consents .
Undoubtedly misunderstandings around (1) have led to the sort of problem seen in Lambeth, whilst (2) is the explanation as to why section 73 is being used in practice as a means to substantively amend schemes, as per the application at the heart of Finney.
A possible solution
An obvious fix to both (1) and (2) would be for the Government to introduce a new statutory power to allow material amendments to existing planning permissions.
This could be done relatively simply by, for example, putting the concept of ‘minor material amendments’ on a statutory footing with the same legal effect as section 96A (i.e. a supplemental decision that amends the original consent, rather than the creation of a fresh consent like section 73). As well as clearing up the current anomaly whereby non-material amendments have a statutory basis but (the more significant) minor material amendments do not, this would eliminate the present temptation/need to use section 73 to substantively amend schemes, which in turn would reduce the number of section 73 consents that would be required and so possible problems of interpretation in the future.
As for the case law on section 73 in the meantime... it is probably safe to say that ce n’est pas Finney.
 See the DCLG’s ‘Greater flexibility for planning permissions’ guidance (October 2010)