For decades, the question of whether the statutory section 73 process can be used to amend the description of development in a planning permission has been a point of contention. However, much to the dismay of developers, the Court of Appeal recently confirmed that it cannot.Section 73 can only be used to vary planning conditions.
While this provides certainty, it also increases complexity and adds extra hurdles to the planning process that will need to be overcome when amending permitted schemes.
Section 73 explained
Originally, if a developer wanted to change a planning condition, the only route available was to appeal the permission, but this risked losing the permission altogether. As such, section 73 of the Town and Country Planning Act 1990 was introduced to enable developers to apply for relief from any or all of the conditions attached to a planning permission.
It can, though, only be used to make a minor material amendment to a permitted scheme, ie an amendment where its scale and/or nature does not result in a substantially different development to that already permitted, and whether it does will be at the planning authority’s discretion.
The approval of a section 73 application results in the grant of a new standalone planning permission. Before Finney v Welsh Minister and others [2019] EWCA Civ 1868; [2019] PLSCS 211, the view of many in the planning and development industry was that, if varying a condition under section 73 would result in an inconsistent description of development, a planning authority could use their discretion to amend the description when it grants the section 73 permission.
Finney: the facts
Planning permission was granted for two wind turbines with a tip height of up to 100m. Condition 2 of the permission required the development to be carried out in accordance with the approved plans. A section 73 application was submitted to vary condition 2 to increase the tip height to up to 125m. Carmarthenshire County Council refused, but permission was granted on appeal for two wind turbines, with no reference to the tip height in the description of development.
Professor John Finney challenged the inspector’s decision on the basis that the section 73 permission could not be granted for development that was not permitted by the original permission; section 73 only allowed the inspector to vary the conditions, not amend the description of development.
The ruling
The Court of Appeal agreed with Professor Finney and quashed the section 73 permission.
The court’s reasoning boiled down to the interpretation of section 73. It is limited to permission for the development of land “without complying with conditions” subject to which a previous planning permission was granted. On receipt of the application, the planning authority must “consider only the question of conditions”. It follows that the planning authority cannot change the description of development which has already been permitted. Further, it would be unlawful to grant a section 73 permission which introduces a condition that alters the nature of what is permitted.
Helpfully the court went on to say that, if the change to the description is not material, section 96A of the 1990 Act can be used to amend this. However, if the change is material, then a fresh application will be required.
While this is a Welsh case, it equally applies to English developments. However, the Welsh Minister and other respondents had until 3 December 2019 to apply for permission to appeal to the Supreme Court.
Practical implications
The decision leaves things in a bit of a mess. For example, what is a developer to do if its planning permission’s description of development specifies the number of car parking spaces, but it needs more or fewer spaces?
There may be a number of potential solutions to this problem, but none are as simple as using section 73. One approach to address the issues raised in Finney is as follows:
- Submit a section 96A application to amend the original planning permission to move the detail in the description of development (eg the unit numbers, storey heights and floorspace) into conditions attached to the original permission; and
- Submit a section 73 application to amend those conditions in the usual way.
- The planning authority grants permission on the section 96A application, shortly followed by the section 73 application, or issues a combined decision notice.
As the permitted development before and after the section 96A approval would be identical, the amendment to move the detail from the description to the conditions should be non-material. The result of the section 96A approval means that there will now be a condition that can be amended using section 73. The acceptability and planning consequences of the section 73 amendment will be considered through the section 73 process.
For new applications going forward, the description of development should be kept broad with the detail added to the conditions. This will pave an easier route for future section 73 applications.
Key points
- Section 73 applications are used to make minor material amendments to permitted schemes, avoiding the need to submit a whole new planning application
- Where the description of development in the planning permission is particularly detailed (eg stating 50 units), the grant of a section 73 application can result in an inconsistency between the scheme approved (eg 52 units as shown on the approved plans) and the description of development
- The Court of Appeal has confirmed that it would be unlawful for the description of development to be changed under a section 73 permission
Caroline Stares is an associate in the planning team at Hogan Lovells International LLP