The Court of Appeal has confirmed that it is not possible to use a ‘variation’ application to change the description of development contained in a grant of planning permission.

In the development world and even amongst planning lawyers, who should frankly know better, applications under section 73 of the Town and Country Planning Act are generally referred to as ‘variations’. Legally that is entirely incorrect since what a successful application results in is a separate grant of planning permission, distinct from the ‘original’ grant of planning permission on which it is based.

Prior to the Court of Appeal’s judgement in Finney v Welsh Ministers [2019] EWCA 1868, developers and planning authorities alike had relied upon the judgement in R (Wet Finishing Works Ltd) v Taunton Deane BC [2018] PTSR 26 (although there was also case law pointing in the other direction including R (Vue Entertainment Ltd) v City of York Council [2017] EWHC 588 (Admin)) to support applications under section 73 that sought to amend the operative element of a grant of planning permission – the description of the development.

The general distinction between the operative part (description of development) and the conditions is that the former describes what can be done and the latter what cannot be done. Clearly, not all cases will be so cut and dried, but that is a convenient starting point to consider the impact of Finney. The description of the proposed development is generally in the gift of the applicant since it is taken from the application form. 

Where issues arise is where the description itself appears to impose a restriction on the development, as if it were a condition. In Finney, the relevant part of the description was that the development was to be “up to 100m [tall]”. This was not a restriction imposed by condition but clearly, there was the potential for, if not an actual, conflict where a condition is relaxed to allow a taller structure but the description of the development is left referring to the lesser height. The simple solution (as viewed at the time by the developer, the planning authority and subsequently endorsed by the High Court) seemed to be to ‘vary’ both the condition and the description using the section 73 procedure. 

Even at the time, but certainly subsequent to Finney, this seemed an odd application of a section of the Act that related specifically to “conditions subject to which a previous planning permission was granted”. The position has now been confirmed by the Court of Appeal, that an application under section 73 cannot amend the description of the development. If the amendment sought cannot be achieved solely through an amendment to or omission of a condition on the ‘original’ planning permission then, according to the Court, a new full application must be submitted.

In the Finney case, one can fully understand why that route was not taken ion the first place since it was for a form of development that was highly unlikely to be granted planning permission second time around. In different circumstances, it may have been possible to use section 96A to amend the description of the development whilst leaving the conditions unaffected and then, once a more amenable description was in place, seek to ‘vary’ the conditions which would then no longer be in conflict with the description.

Whilst Finney closes the section 73 route, there may be other avenues worth exploring to achieve the same endpoint. A more widely applicable point is a caution against being too prescriptive (or prescriptive at all) in the description of the development proposed; “the residential development of land” is a no less valid description of a proposal than “development of land for up to 20 dwellings” yet it is far less likely to be an impediment to the use of section 73 in the future if needed.