Section 73 after Finney - Section 96A after Fulford
Whether or not a section 73 application could be used to amend not only planning conditions but also the description of development was always a favourite topic for discussion among planning lawyers. This time last year we thought we'd finally got some clarity when the High Court decided in Finney v Welsh Ministers that the answer was yes. However, last week the Court of Appeal overturned the decision and decided that a section 73 application can NOT amend the description of development. It recognised that a section 96A application can be used to amend the description, but only if the change is non-material.
Clients are already asking what this means for their planning applications. Care will need to be taken to ensure that the description of development is as flexible as possible and a careful judgement will need to be made about the amount of detail that should in included. On the one hand applicants will want to avoid too much detail so as to provide maximum flexibility to make scheme changes in future without the need for a brand new planning application while ensuring that the description is nevertheless sufficiently precise to avoid falling foul of the decision in Barnett v. Secretary of State, with application documents having to be looked at to determine what exactly planning permission has been granted for.
The Finney decision comes hot on the heels of the decision in Fulford Parish Council v York City Council in which the court held that a section 96A application can be used to seek a non-material amendment to a reserved matters consent.
So in the flexibility stakes, it's one loss, and one gain. On the one hand, we've got more clarity, but on the other, new problems to wrestle with.