Partner Karen Jones, in our Planning & Environmental Law team, explains the scope of a s73 application following a recent High Court case.
The recent High Court case of Armstrong v Secretary of State for Levelling-Up, Housing and Communities and Another [2023] EWHC 176 (Admin), considered the scope of s73 application. The High Court confirmed that s73 application is not just limited to “minor material amendments” and that Planning Practice Guidance (“PPG”) introducing the concept of “minor material amendment” in the guidance is confusing, when there is no such reference to it in section 73 of the Town and Country Planning Act 1990 (amended) (“the 1990 Act”) and case law doesn’t support such interpretation.
S73 Applications
Section 73 of the 1990 Act provides for applications for planning permission to develop land without complying with previously imposed planning conditions. The local planning authority can grant permission unconditionally or subject to different conditions, or they can refuse the application if they decide the original condition(s) should be kept.
The only limits imposed by the wording of s73 itself is on the type of amendment which can be affected are as follows:
- The amendment must be facilitated through an amendment to a condition.
- The original planning permission must have been lawfully implemented or still be capable of implementation.
- The amendment cannot have the effect of extending the time within which a development must be begun or within which an application for approval of reserved matters must be made.
- The amendment cannot display the biodiversity gain condition which will automatically be imposed on every planning permission granted In England for a date to be appointed.
If an amendment to a scheme cannot be facilitated through an amendment to a condition, then you cannot use s73 and a fresh planning application will need to be submitted to the local planning authority. The planning permission granted will be a new planning permission, however it will expire on the same date as the original permission. The new permission sits alongside the original permission, which remains intact and unamended. It is up to the applicant to decide whether to implement the new planning permission or the original permission granted.
PPG, under section ‘Flexible options to planning permission a permission can be amended under s73 of the 1990 Act’ states tan amendment would be considered a “minor material amendment” if its scale and nature results in a development which is not substantially different from the one that has been approved. Minor material amendments may include small reductions or increases to the scale, height or footprint of a development.
Armstrong case
Mr Armstrong was granted planning permission for “construction of one dwelling”. Mr Armstrong made an application under s73 to vary condition 10, which required the development permitted under planning permission to be carried out in accordance with 8 plans identified. The variation applied for was to substitute a plan for a dwelling of a different form and architectural style.
Cornwall Council refused this application and stated that the revised design “completely alters the nature of the development and would result in a development that would differ materially from the approved permission and as a result, the proposal went beyond the scope of S73 of the 1990 Act”. Mr Armstrong appealed Cornwell Council’s decision, and the Planning Inspector dismissed the appeal. The Planning Inspector held that the application “goes beyond the parameters of a minor material amendment and cannot be considered under section 73.” Mr Armstrong challenged the Planning Inspector’s decision in the High Court.
The main issue for consideration for the High Court was whether the planning inspector had lawfully concluded that the application would give rise to a fundamental variation to the permission such that the application fell outside of the scope of the s73, where the condition being varied did not change the description of the development. The High Court allowed the appeal and quashed the planning inspector’s decision. The High Court held that the form or the architectural style was not specified in the description of the development and had the description been more prescriptive of type and style, then the situation may have been different.
The High Court stated that the wording in the PPG causes confusion as it refers to “minor material amendment” and that there was nothing in s73 or the 1990 Act itself that limited the application to “minor material amendments” or to “non-substantial” or “not fundamental variations”. The High Court went onto to say that a s73 application was limited to non-compliance with a condition and that it could not be used to vary or impose condition where the resulting condition would be inconsistent with the operative part of the planning permission granted.
Cases referred to in the case of Armstrong
Judge James Strachan KC referred to number of case law in its judgement where the interpretation of the scope of s73 has been considered and said that the caselaw was more consistent with giving the words of the s73 their plain and ordinary meaning rather than restricting the scope of s73 to “minor material amendment” where there is no conflict with the operative part of the planning permission.
In the case of R. v Coventry City Council Ex parte Arrowcroft Group Plc [2001] P.LC.R 7, permission had been granted in 1998 for development for ‘40,000 seat multi-purpose arena, one food superstore and one variety superstore with associated units’. The planning permission contained a condition that required the development to comprise a food superstore and a variety superstore. Another condition restricted the subdivision of the variety superstore. Following an application under s73, planning permission was granted for up to six non-foods (i.e. comparison) stores in place of the one variety superstore of the original permission. Coventry City Council granted the application, however the lawfulness of the grant was challenged by the claimant. The court could not see how the local planning authority could impose such a fundamentally inconsistent condition under s73. The local planning authority was required to consider only the question of the conditions subject to which the condition should be granted. The High Court quashed the new planning permission, and it was held that s73 could not be used to change the “operative part” of the planning permission i.e. the description of the development.
The scope of the power under s73 and the decision of Arrowcroft were considered in the case of R (Vue Entertainment Limited v City of York Council [2017] EWHC 588 (Admin) concerned a planning permission for an 8,000-seat stadium, multi-screen cinema and related facilities. There was a planning condition imposed, requiring the development to be implemented in accordance with the plans, one of which showed a multi-screen cinema of 12 screens with a capacity of 2,000 people. Vue Entertainment submitted a s73 application to increase the screens to 13 with a capacity of 2,400 people. There was nothing in the description of the original permission or its conditions which limited either the amount of floor space or the number of screens and thus the capacity of the multi‑screen cinema. The application was granted permission and the decision was challenged by the claimant on the basis that the application involved a very significant increase in the numbers who could attend the multi-screen cinema with greater impact on claimant’s city centre operation and contended that s73 granted amounted to unlawful “fundamental change”. The High Court held that the amendments fell within the scope of a s73 application and that in determining an application under s73, a decision-maker had to look to the permission as a whole to see whether there was in reality a fundamental change to the original planning permission.
In the recent case of Finney v Welsh Ministers [2019] EWCA Civ 1868, the Court of Appeal provided further important guidance on the scope of s73. In this case the developer had been granted conditional planning permission to construct two wind turbines. The description of development in the permission specified that the turbines were to have a height of 100m. One of the conditions required the development to be carried out in accordance with specified plans. The developer then applied under s73 of the 1990 Act to vary this condition to insert plans showing turbines with a height of 125m. This application was allowed on appeal by the Welsh Ministers. The Appellant challenged this decision in the High Court on the ground that the grant of permission was ultra vires because the imposition of this condition would require a change to the height specification in the description of development. The Court of Appeal reversed the High Court decision and held that an application under s73 may not be used to obtain a varied planning permission when the change sought would require a variation to the description of development (which the court described as the “operative” part of the permission).
Comment
The case of Armstrong confirms the statutory interpretation of the scope of s73 applications, the principles of which has already been established in case law referred to above. Developers seeking to amend or vary conditions to original planning permission need to ensure that any amendments being sought does not change or alter the operative part of planning permission and falls within the limitations set out in s73 of the 1990 Act.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
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