Due to the implications of Finney v Welsh Ministers  an inspector has found himself unable to take any further action in respect of a Section 73 appeal seeking the removal of a time-limiting condition on a gypsy site in Worcestershire (DCS Number 200-010-854).
The original permission was for ten gypsy pitches and 24 transit gypsy pitches, and was subject to a condition requiring the cessation of the use within four and a half years from the date of the decision. The appeal drawing, however, excluded the location of the touring caravans for transit pitches, and it was this matter which presented the inspector with a problem.
The inspector explained that in Finney it was established that an application under Section 73 may not be used to obtain a permission that would require a variation to the terms of the “operative” part of the planning permission, that is, the description of the development for which the original permission was granted. He acknowledged that the condition requested for removal would not necessarily affect the “operative” part of the permission itself. Nevertheless, the submitted application sought to exclude the transit pitches, which would require a change to the description. He reasoned that the removal of the condition would cause conflict with the original description of the development. Consequently, the grant of a new permission would result in conflict with the judgment in Finney.
The inspector ruled that the creation of a new planning permission omitting the condition imposed on the original permission was beyond the powers under Section 73 and could not be made. Accordingly, no further action could be taken on the appeal.
Section 4.416 of DCP Online contains background information and further appeal cases related to Finney.