Section 73 of the Town and Country Planning Act 1990 is frequently referred to as conferring power on a local planning authority (LPA), on application, to vary the conditions attached to an existing planning permission. However, the effect in planning law of a successful application is not to amend the existing planning permission but to create an entirely new one. What is also occasionally overlooked is the fact that section 73 envisages the existing planning permission not having been implemented at the time of the application.
Where the permitted development has already been commenced, and the developer wants to continue but on the basis of a changed condition or conditions, it will have to rely on section 73A of the Act. This empowers an LPA to grant planning permission with retrospective effect. The decision in Taylor Wimpey (South West Thames) Ltd v Secretary of State for Communities and Local Government [2011] EWHC 2090 (Admin); [2011] PLSCS 249 provides some helpful practical guidance on reliance on section 73A.
The claimant had implemented a planning permission granted for the construction of 135 residential units on a green-belt site. Subsequently, it submitted a further application to the LPA to increase the number of units to 145 by altering the construction of apartment blocks that had been approved under the existing planning permission. The LPA and an inspector on appeal refused this. The latter concluded that the development proposals were unacceptable in green-belt terms.
The claimant’s application to the High Court under section 288 to quash the inspector’s decision was successful. The judge, holding that section 73A applied, concluded that the inspector had erred in law by not recognising that the development proposals related to the entire original site. In consequence, he had ignored as a material consideration the fact that the LPA had earlier decided that very special circumstances justified the approved development in green-belt terms.
Interestingly, the planning application had not been presented as a section 73A application nor had any mention been made of that provision in the supporting documents. The judge pointed out that there is no specified form on which an application should be made under section 73A, nor does the application have to state that it is made pursuant to that section.
John Martin is a freelance writer
