A conflict situation

A judgment handed down by the Court of Appeal towards the end of last year confirmed that the variation of a condition under section 73 of the Town and Country Planning Act 1990 must not result in conflict with the original description of development (Finney v Welsh Ministers [2019]).

The effect of the ruling in practice can be seen in a recent appeal concerning alterations to a building in central London (DCS Number 400-024-536). Planning permission had been granted for an extension to the rear closet wing of the building at second floor level and was subject to a condition stipulating that the development should be carried out in accordance with the drawings listed on the decision letter. The appeal related to an application to amend the scheme by revising the plans referred to in the plans condition. The proposed change would be to enable the closet wing, which would accommodate a lift, to be extended one floor higher to third floor level.

The inspector identified the main issue as being whether it was possible, in law, to amend the scheme by varying the plans condition in the way proposed. He recorded that in Finney, the Court of Appeal referred to s73(2) of the Act, which indicates that, when considering applications under s73(1) for planning permission for the development of land without complying with conditions subject to which a previous planning permission has previously been granted, the local planning authority must only consider the question of the conditions. It cannot, therefore, consider the description of the development to which the conditions are attached. The court found that the ‘natural inference from that imperative is that the planning authority cannot use section 73 to change the description of the development.’ Moreover, Finney confirmed that there should not be a conflict between what was permitted in the original consent and what the new condition requires.

The inspector related that in Finney, “the original description of development referred to ‘two wind turbines, with a tip height of up to 100m.’ However, when the development was allowed on appeal, subject to a condition referring to new plans showing a tip height of 125m, the new description of the permitted development excised the reference to a tip height of up to 100m. The court held that if the description of the permitted development had been left unchanged, there would have been a conflict between what was permitted (a 100m turbine) and what the new condition effectively required (a 125m turbine), and that a condition altering the nature of what was permitted would have been unlawful.”

The inspector found that the Finney case was analogous to the appeal proposal before him which effectively sought to amend the permission to allow the closet wing to be extended one floor higher, to third floor level, as shown in the revised drawings. However, the description of development in the original planning permission referred to ‘extension to rear closet wing at second floor level’. Therefore, there would be a clear conflict between the description of the permitted development, which Finney said cannot be altered via s73, and what would be shown in the revised plans referred to in the plans condition. Given the description, such a condition, requiring the development to be carried out in accordance with plans showing the closet wing to be extended to third floor level, would alter the nature of the development and be unlawful.

The inspector concluded that it was not possible to amend the scheme by varying the plans condition attached to the extant planning permission in the way proposed.

Section 4.416 of DCP Online concerns the removal or amendment of conditions.