Finney v Welsh Ministers & Ors [2019] EWCA Civ 1868

The point in plain English: Section 73 lets you seek a new permission with different conditions. It does not let the planning authority rewrite the operative description of the development itself.

What happened

The original permission authorised two wind turbines with a tip height of up to 100 metres. A later section 73 application sought to substitute plans showing turbines up to 125 metres high.

On appeal, the Inspector allowed the change and removed the 100-metre wording from the description of the permitted development so that the revised condition and description would no longer conflict.

What the Court of Appeal decided

Lewison LJ held that this was outside section 73. The section allows the authority to consider the conditions subject to which the same development should be permitted. It does not confer a power to alter the description in the operative grant.

If the original 100-metre description had been left untouched, a condition authorising 125-metre turbines would have conflicted with what the permission actually granted. The Inspector could not solve that problem by rewriting the description.

The appeal was allowed and the Inspector’s decision was quashed.

Finney after Armstrong and Test Valley

Finney remains fundamental, but it should now be read with Armstrong and the Court of Appeal’s later decision in Test Valley v Fiske. Those cases confirm that section 73 is not subject to a separate legal test limiting it to “minor material amendments” or non-fundamental changes. The controlling point is that the new permission and its conditions cannot contradict the operative grant.

As at 10th September 2026, the separate section 73B route inserted by the Levelling-up and Regeneration Act 2023 remains uncommenced. Current government material still refers to section 73B as applying “when in force”.

See our practical guide to section 73 applications.