High Court Judgement Ruling on Section 73 Applications

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The recent High Court ruling in the case of Armstrong v Secretary of State for Levelling-Up, Housing and Communities [2023] EWHC 176 reaffirms the principle of Section 73 (‘S73’) applications which can be used to amend conditions attached to an approved scheme, provided it would not conflict with the description of development permitted by the planning permission.

Section 73 of the Town and Country Planning Act 1990 (TCPA 1990) allows applicants to apply to alter or remove a condition attached to a planning permission without incurring the expense and risk of submitting a new full application.

The issue surrounding the scope of S73 applications was identified over the course of the High Court proceedings which concerned a 2007 permission to build a Swiss chalet-style home on the Cornish coast. In 2021, the applicant applied to vary the building’s design under Section 73 of the TCPA 1990. This application was refused by Cornwall Council on the basis that: “the proposed revised design completely alters the nature of the development and would result in a development that would differ materially from the approved permission”, falling outside the scope of S73.

A subsequent appeal against the refusal was dismissed by a Planning Inspector, by reason of the proposal falling outside of what is considered a ‘Minor Material Amendment’ (‘MMA’). However, once the case was presented to the High Court, the presiding Deputy Judge quashed the appeal decision, having found that the Inspector misinterpreted the scope of S73.

The judgement confirms that: “there is nothing in section 73, or in the TCPA 1990, that limits its application to “minor material amendments”, or to amendments which do not involve a “substantial” or “fundamental” variation”. It goes on to state that: “if Parliament had intended the power to restrict its application further (for example to limit it to “minor material” amendments to a condition, or non-fundamental variations to a condition) one would have expected that to be expressed in the language used and it could readily have done so”.

Instead, it clarifies that S73 applies to any application for planning permission for development of land: “without complying with conditions subject to which a previous planning permission was granted”.

The judgement also acknowledges the relationship between the decision in Finney which confirmed that a S73 cannot be used to vary the operative part of a planning permission. This established that one cannot use S73 to vary or impose a condition where the resulting condition would be inherently inconsistent with the operative part of the planning permission; that would also involve effective variation of the operative part of the planning permission as well.

The judgement focusses on the: “plain and ordinary meaning” of S73. Taking the principles laid out in this judgement and Finney, it states that: “section 73 is clearly intended to be a provision which enables a developer to make a section 73 application to remove or vary a condition, provided of course that the application does not conflict with the operative part of the planning permission”.

The judgement goes on: “The operative part of the planning permission is for the construction of a single dwelling on the Site. The proposed revision to the architectural style of the dwelling (however different in nature) does not conflict with that. It will remain a permission for the construction of a single dwelling on the Site”.

It was deemed that the redesign of the approved dwelling would not cause a: “change in the basic principle of what was being permitted on the Site, namely the construction of a single dwelling”. Accordingly, it was considered that this change could fall within the scope of S73.

Notwithstanding this, the judgement notes that: “the effect of giving the words used in S73 their plain and ordinary meaning so as to allow an application to be made for non-compliance with any planning condition which is not in conflict with the operative part of the permission does not, of course, dictate the outcome of that application. It simply means that the application can be entertained. Any such application would then fall to be determined on its planning merits”.

As a result, this judgement helps to clarify the principles surrounding the scope of the S73 process in allowing changes that do not conflict with the operative part of the planning permission and that the acceptability of any such changes will remain a judgement call for the decision maker.

Firstplan continues to monitor any changes in planning guidance and legislation. For advice regarding the S73 process, please contact Chris Jones who will be happy to advise on any related matters.

Article by Joshua Hindle