S73 application not a "fundamental alteration"

Section 73 (S73) of the 1990 Town and Country Planning Act (TCPA) enables a planning permission condition of the previous permission to be varied. However, the question of whether S73 could be used where the amendment directly contradicted the 'operative part' or description of development permitted in the original permission has been a point of debate. In the recent case, the High Court confirmed that a variation under S73 was lawful even though it changed the 'operative part' of the proposed development.

The case involved Energy firm Energiekontor UK Limited, who were granted planning permission for two wind turbines on a site in Carmarthenshire. The energy firm applied under S73 to vary a condition on the planning permission which stated the proposed wind turbine was to be built with a tip height of 100m. Energiekontor sought to vary the permission so that it could build a taller version, showing tip heights of up to 125m.

The local planning authority refused the S73 application on the grounds it would have an unacceptable impact on the landscape and would be contrary to policy. Energiekntor appealed. A planning inspector allowed Energiekontor's appeal, but made no reference to the tip heights in the description of the new permission. A local resident made an application under S288 of the TCPA to quash the Inspector's decision. The claim was made on the basis that the Inspector had exceeded her powers under S73.

Despite the precedent set by the case of R (Vue Entertainment Ltd) v City of York Council, (which determined that S73 did not allow for the revised planning permission to contradict the operative part of the original plans), the Judge in this case concluded differently, stating that the inspector had correctly applied the law.

In the Judge's view, the inspector had carried out a "meticulous planning appraisal" of the larger turbines compared with the smaller ones initially approved. He said he had "no doubt" that she had specifically considered whether varying the condition would fundamentally alter the original plans. Further that the argument submitted by the claimant, if accepted, would lead to an 'over-technical' and 'inflexible' approach to the application of S73.

In summary, the question of whether the changes would create a 'fundamental alteration' to the original planning proposal should still be considered. However, the key point from this case is that a S73 consent can vary the terms of the 'operative part' of a planning permission. Further, descriptions of proposed development can be altered as long as not a fundamental alteration to the proposed development the subject of the original permission.

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