A recent High Court ruling asserted that section 73 variations are not restricted to “minor variations” of a planning permission and can be used for any variation that does not change the basic principle of what was being permitted on the site.
In Armstrong v Secretary of State for Levelling Up, Housing and Communities [2023] EWHC 176 (Admin); [2023] PLSCS 21, the High Court found that a planning inspector had erred in his approach to an appeal decision because he restricted his interpretation of section 73 of the Town and Country Planning Act 1990 to “minor material amendments”. The judge suggested this may have been a result of the confusing wording of the planning practice guidance, which may by its layout suggest that section 73 is limited to “minor material amendments”, and that readers of the guidance may consequently be “misdirected” when making decisions.
In this case, planning permission had originally been granted for a house in 2007, and subsequently in 2020 for a non-material amendment to the existing permission. Towards the end of 2020, the applicant applied for a variation to the permission under section 73. The applicant wanted to change the house design and remove one of the old conditions to which the permission was subject.
The council rejected the application and the planning inspector subsequently rejected the applicant’s appeal against the council’s decision. The inspector’s key reason for rejecting the appeal was that the proposed amendment was “fundamentally different in its design” and that the modifications would therefore be substantial, meaning that these modifications could not be considered “minor material amendments”. The inspector found that a new planning application would be required.
The High Court held that there is nothing in section 73, or indeed the entirety of the Town and Country Planning Act 1990, which restricts the application of that section to “minor material amendments”, and case law does not impose any further such limits on its application.
Instead, section 73 focuses on applications for non-compliance with conditions of a planning permission. Such applications should be considered in terms of their planning merits, provided that they do not inherently conflict with the operative part of the planning permission (in this case, that the permission is for construction of a single dwellinghouse). The inspector had failed to reach this stage as he had already, mistakenly, dismissed the appeal for not being within the scope of section 73.
Martha Kent is a trainee solicitor in the planning and environmental team at Irwin Mitchell
