24.02.2023
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For many planners, Section 73 (s.73) applications are our bread and butter; we are always dealing with changes to schemes and changes to conditions. Despite how common s.73 applications are, we are still seeing fundamental mistakes being made sector wide in regard to understanding their scope.
What is s.73?
Simply put s.73 is a provision found within the Town and Country Planning Act 1990 which allows one to vary or remove a condition, including varying the list of approved plans to allow for amendments. A s.73 approval stands as a separate planning permission, but it is subject to the same implementation timescale (usually ‘Condition 1’).
If your s.73 application is granted, then you will have two independent planning permissions (the extant and the new permission), where you have the choice of implementing either permission (but, importantly, not bits of both).
Conversely, if your s.73 application is refused then you will not gain a separate planning permission, however (and importantly!), your extant planning permission remains intact.
What is not covered by s.73?
It is important to highlight that s.73 applications cannot:
In its determination of your s.73 application, the Local Planning Authority will consider the usual material planning considerations, along with the most relevant Development Plan at the time of your s.73 application being submit, rather than any policies relevant to your granted extant permission. Anything that has changed on or around the site since the original permission was granted could also be relevant.
What is the Armstrong case all about then?
In 2007 Mr. Armstrong had secured consent for the “construction of one dwelling”, the permission was for an “irregularly-shaped boldly modernist” dwelling. In December 2020 Mr. Armstrong had a change of heart and submitted a s.73 amendment application that sought to change the dwelling to a “dual-pitched alpine lodge style” dwelling by way of varying the approved plans condition.
Ultimately, changing the dwelling design did not require the rewriting of the description of development, as fundamentally it still provided the “construction of one dwelling” (it sounds like Mr. Armstrong looked into the future and took our advice on an open ended description, smart chap). However, the proposed design was entirely different and the plans subject to planning conditions attached to the extant consent would need to change.
Cornwall Council then refused Armstrong’s s.73 application as it considered that it fell outside the scope of s.73 as the new scheme “completely alters the nature of the development and would result in a development that would differ materially from the approved permission”.
This same sentiment was shared by the Planning Inspector at appeal. And, when one reads the current government guidance on the subject, you can sort of see what they were both saying; if s.73 variations are described as “minor material amendments”, then surely a judgment is required on what is “minor” and “material” and what is not, regardless of the planning merits of the submission…
Being the savvy chap that Mr. Armstrong is though, he decided to test this in the Court… and he won…
What is the outcome?
The judgment in Armstrong first considered the statutory provisions, i.e., is there anything in s.73 itself which limits the scope of amendments that might be achieved?
The judgment finds that there is not, provided that the description of the original description of development is not changed. So, yes, (for now), let’s ‘fill our boots’ and use s.73 for what the judgment says it is there for, pretty much any change to an original planning permission which has conditions which can be amended and should be acceptable for policy reasons.
The judgment leaves a tension though between this approach and the guidance which is still written down in the Planning Practice Guidance.
On this, the court described the PPG as “being liable to confuse”, with its concept of “minor material amendments” introducing an “impermissible gloss on the scope of s.73 which has the propensity to misdirect”.
In summary, in light of this determination, the court has assisted us planners by pulling out the paint stripper to wipe away this ‘impermissible gloss’, which has provided some key understandings:
With thanks to this judgement, we would expect some revisions to be made to the PPG in the near future.
Where do we go from here?
In short, Councils and Inspectors cannot resist s.73 applications just because they think that they go beyond the scope of what may be considered “minor material amendments”; so long as the original description of development is not changed.
As we can appreciate from the above, it is clear, that with the trusty PPG misguiding us, navigating the murky waters of the scope of s.73 applications can be complex and we are expecting to have some discussions with LPAs on this point.
Thankfully this is all something that DHA are well placed to assist with.
For further information please contact Greg Filmer.
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