Another week, another slightly contradictory outcome for planning! Spotlight this week falls on Section 73. What even is a s.73 we hear you cry? Well, to provide a full rundown of the application type and why it is currently of interest in planning circles, let us first cast your mind back to January 2023 and a case titled Armstrong v Secretary of State [2023]. Strap in, it’s going to be a wild ride!
What is a Section 73 in planning?
Picture the scene, you have secured planning permission but a condition attached to the approval is overly onerous, and/or, you realise you need to make changes to the proposed development that are controlled by a condition. What are your next steps? A completely new application? Appeal? Or might a s.73 be of use to you?
Well back in January 2023 the Planning Practice Guidance, under a niftily titled section called: ‘Flexible Options for Planning Permissions’ defined a s.73 as follows:
An application can be made under section 73 of the Town and Country Planning Act 1990 to vary or remove conditions associated with a planning permission. One of the uses of a section 73 application is to seek a minor material amendment, where there is a relevant condition that can be varied.
Reading the above, you might be thinking – what with its minor material amendments and only relating to planning conditions, a s.73 sounds all too restrictive.
Well roll on the case of Armstrong v Secretary of State [2023]. In it, the claimant had received refusals by both the Local Authority and the Planning Inspectorate for a s.73 to change a condition which required the development to be built in accordance with specific plans. The change would result in the condition referencing a new set of plans to be built in accordance with, showing a different design. The original approval was for one dwelling and the claimant wanted to shift from a modern design to that of an Alpine Lodge style. The proposed changes were significant, presenting a very different architectural style to the original permission.
At the time, as noted above, the PPG made mention of minor material amendments, but it is worth noting that in the Armstrong case, the High Court stated that the wording in the PPG caused confusion as there was nothing in s.73 or the 1990 Act itself that limited the application to minor material amendments. Therefore, the High Court found that as these proposed changes did not conflict with the original description of development, they ruled in favour of the claimant.
Well that was a pretty exciting moment for us planners – the High Court was essentially saying the PPG is confusing and for the correct application of a s.73, refer to the Armstrong case. It suddenly seemed that s.73 had the potential to provide a far greater scope for making changes to an existing planning permission than previously thought.
July 23 – the PPG changes wording for a Section 73
Given the case law, the PPG finally caught up and as of 26 July 23, references to minor material amendments were removed. Instead, the PPG now states:
In contrast to section 96A, an application made under section 73 of the Town and Country Planning Act 1990 can be used to make a material amendment by varying or removing conditions associated with a planning permission. There is no statutory limit on the degree of change permissible to conditions under s73, but the change must only relate to conditions and not to the operative part of the permission.
Provisions relating to statutory consultation and publicity do not apply. However, local planning authorities have discretion to consider whether the scale or nature of the change warrants consultation, in which case the authority can choose how to inform interested parties.
These are pretty key points – namely that a s.73 can be used to make a material amendment with no statutory limit on degree of change permissible, only that it cannot amend the operative part of the permission. But furthermore, it also now states that provisions relating to statutory consultation do not apply – although authorities have discretion as to whether consultation is warranted. Which seems like a major shift, that potentially these applications can go through without consultation.
September 23 – and along came Fiske
However, just as we were rejoicing in some joined up thinking in planning, along comes Fiske, R (On the Application Of) v Test Valley Borough Council [2023] EWHC 2221 (Admin) (06 September 2023). You can read the full decision in our Resources below. In essence the decision contradicts to some degree, the outcome of the Armstrong case. In Armstrong, the decision is clear that a s.73 must not produce a conflict with the description of development, and provided that is the case, you aren’t limited to only non-fundamental variations. However in Fiske, it suggests that a s.73 permission must not fundamentally alter the development permitted under the original planning permission.
It gives you a real sense that the High Courts are having to grapple with the updated scope of a s.73 and we think, for the foreseeable, we will see this more and more. Perhaps only a Court of Appeal Decision will pin the scope down so, as ever in planning, watch this space! And don’t get us started on the potential implications of this on the proposed s.73B in the Levelling Up and Regeneration Bill, which is currently going through its 3rd reading in the House of Lords.
Back to s.73 – is it the right planning strategy for you?
The useful thing about a s.73 is that, if approved, it provides you with a new permission which sits alongside the original permission. You therefore have 2 permissions and you can choose which you implement. The original permission or the original permission with revised conditions. Furthermore, if for any reason your s.73 application is refused, it doesn’t impact the original planning application because all you were seeking to do was change conditions associated with a planning approval. So the original permission remains intact.
Of course, as we can see from recent High Court decisions, this doesn’t mean s.73 is a silver bullet. Any application will still need to be considered on its planning merits, and it is up to the Authority as to whether any proposed changes warrant statutory consultation. It is also worthwhile to remember that it doesn’t enable you to extend the life of a planning permission and can only be used on applications that have either been implemented or are still valid.
In terms of planning strategy, a key takeaway from all of this is the importance to look ahead – don’t be too specific in regards to your description of development, in case you need to make changes further down the line. And do make sure you double check the validation notice from the Council as on occasion you may find that they have sought to tighten the description of development on your behalf. This is something that technically, Council’s should consult you on, but in our experience always go through the validation letter with a fine tooth comb!
Section 73 is undoubtedly a useful tool but needs to be used strategically and intelligently. We have recently used it to great effect on several projects: from altering the design and layout of car ports on a 5 dwelling scheme in Ashford; changing key design elements of a flatted development for 14 apartments in Canterbury; through to the design and scale of a replacement dwelling project in Chelmsford.
If you want to make amends to a planning permission and need to understand whether a s.73 might be applicable, or if the submission of a new application might be a better strategy then contact our team for our clear, informed and candid advice.
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Resources
https://www.gov.uk/guidance/flexible-options-for-planning-permissions