John Bosworth outlines how section 73 of the Town and Country Planning Act 1990 works.
A power to amend planning permissions is just the sort of practical piece of legislation needed to make a planning practitioner’s day-to-day life straightforward and without complications. Well, if that is what the draughtsman intended to provide with the Town and Country Planning Act 1990 (the 1990 Act), then they failed hopelessly.
First of all, apart from the relatively new power to make non-material amendments to planning permissions under section 96A (which was introduced by the Planning Act 2008) there is no general power to amend a planning permission.
If you are looking to make substantive changes to a permission, then section 73 is the route and what this actually provides is the right to apply for planning permission without complying with a condition attached to an existing planning permission. So, rather than amending the original permission, this process grants a new permission subject to different conditions. This position has led to problems in some situations.
What section 73 applications can’t do
In terms of varying conditions, one power that might be really useful would be the ability to extend the deadline set out in conditions either for submitting reserved matters for approval or for implementing the permission. Unfortunately (at least in England, albeit not in Wales) the use of section 73 to do so is expressly ruled out.
Section 73(5) specifically provides: “Planning permission must not be granted under this section to the extent that it has effect to change a condition subject to which a previous planning permission was granted by extending the time within which—
(a) a development must be started;
(b) an application for approval of reserved matters (within the meaning of section 92) must be made.”
Those with long memories will recall that, in 2012, the government introduced a new provision to overcome this restriction in section 73, to enable the renewal of unimplemented permissions. This was to combat the fact that, owing to the economic downturn, many planning permissions were not being implemented and were about to expire. To use the provision, a planning permission had to be extant and must have been granted before 1 October 2009. This was later amended to 1 October 2010, as the economic situation had not improved, but no further. Accordingly in England it is impossible to extend the lifetime of a permission through section 73.
How should planning conditions be dealt with?
The legislation is focused on the conditions that are attached to a permission: it prescribes that, on an application made under section 73, the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted.
However, this does not mean that design issues can never be considered under a section 73 application. Often conditions will have been imposed on the permission stipulating the detailed drawings that need to be complied with and an application can be submitted to substitute different drawings, thereby enabling substantive changes to be made to the appearance of the development under this procedure.
Government guidance in the form of planning practice guidance advises on the mechanics of the section 73 process and, in particular, that a decision notice describing the new permission should be issued, setting out all the conditions related to it. It goes on to say that it is good practice and assists with clarity if decision notices for the grant of planning permission under section 73 also repeat the relevant conditions from the original planning permission, unless they have already been discharged.
This latter point does slightly leave unanswered what the position is if conditions have already been discharged. Presumably, if they have, conditions should be imposed on the new consent requiring that those approved details are incorporated into the section 73 permission, as there is nothing that automatically deems that to be the case.
Also, what if the authority grants the section 73 application with no conditions attached? That was the situation in the case of R (on the application of Reid and another) v Secretary of State for Transport and Local Government and the Regions [2002] EWHC 2174, in which permission was granted under section 73 to retain the use of land as transport depot without compliance with condition 2 on a 1992 permission relating to improvements to the public highway.
The permission notice stated “Conditions: None”. The issue was whether the permission was therefore unconditional. The court found that, because the earlier permission had been incorporated by reference into the section 73 permission, the words “Conditions: None” simply meant no additional conditions beyond those which had been imposed on the 1992 permission. Of course, a different result might have been reached if the earlier permission had not been incorporated.
A different outcome arose more recently in London Borough of Lambeth v Secretary of State for Communities and Local Government [2017] EWHC 2412. In this case there was an application to relax a bulky goods condition on a retail warehouse by replacing it with a “no food sales” condition. The council granted the permission and repeated the other conditions from the original permission but failed to impose a replacement “no food sales” condition instead of the original bulky goods condition. This time the court refused to imply such a condition into the permission, saying that the deliberate setting out of the other conditions showed that the authority had clearly thought about the conditions that should apply.
Section 106 agreements and section 73 applications
If the original planning permission was linked to a section 106 agreement, then it is likely that the section 73 permission will need to be too, unless all the provisions have been satisfied. However, it is likely that this will need to be done specifically by a supplemental agreement that links the original agreement to the permission. Anecdotally, there are stories of section 73 permissions that have been issued without doing so – and developers getting away with reduced section 106 requirements as a result.
A simple way for authorities to avoid this trap is to ensure that, whenever they draft section 106 agreements, the agreement is expressed to bind not only the original planning permission but all subsequent section 73 consents. If this drafting turns out to be inappropriate, it can always be varied in respect of a particular consent.
Section 73 and the Community Infrastructure Levy
It goes without saying that section 73 permissions can have CIL implications. If the section 73 permission involves an increase in floorspace then CIL will be payable in respect of the difference. Two circumstances can apply here. A section 73 permission may be granted at a time when a CIL charging schedule is in place and either (1) no CIL charging schedule was in place at the time of the original permission or (2) there was a charging schedule when the original permission was granted.
In the first case CIL will have to be calculated for both the original (non-CIL) development and the section 73 development, both in accordance with the charging schedule that applies to the section 73 consent, and the amount payable is the difference between the two amounts. In the second case, assuming that the development has already started, the total amount of CIL payable will be that calculated on the section 73 permission, so if the CIL has been paid, it will just be the difference between the two calculations.
Of course, the situation is not quite so simple as this. Although the CIL regulations were intended to only charge the “top up” change in CIL, a drafting quirk meant that, in the case of a section 73 permission where the original consent was pre-CIL, it was possible to construe the regulations such that the indexation change applied across the whole of the consented floorspace. Draft Community Infrastructure Levy (Amendment) Regulations 2018 were published on 14 December 2017, which are intended to address this point by clarifying that the same indexation base value should be used for working out the chargeable value of each consent. In the meantime, until these regulations come into effect, care needs to be taken when dealing with section 73 applications, indexation and abatement applications.
Section 73 is therefore a fiddly little provision. Very useful if used properly, but with plenty of scope for error.
Main image: © Cultura/Rex/Shutterstock
John Bosworth is a partner at Maples Teesdale
