The apparent need for a section 73 planning application may on occasion be avoided

Section 73 of the Town and Country Planning Act 1990 (“the Act”) empowers a local planning authority (“LPA”), on an application being made to it, effectively to discharge or amend conditions attached to an existing planning permission. The statutory mechanics involved, however, are such that the existing planning permission is left intact and unamended, and an entirely fresh grant of planning permission results. The procedural requirements involved in making a section 73 application are generally as comprehensive as those involved in making an application for planning permission under section 62 of the Act. In R (on the application of Daniel) v East Devon District Council [2013] EWHC 4114 the developer had, at one stage, sought to add a further condition to an existing planning permission but chose to do this not by means of an application made under section 73 of the Act but rather by means of one made under section 96A of the Act. (This came into effect on 1 October 2009.) Here is a reminder of the circumstances in which this route is available. Section 96A gives a LPA in England a power to make a change to an existing planning permission, if it is satisfied that the change is “not material”. The section expressly provides that this power includes power to impose new conditions, and to remove or alter existing conditions. It may exercise the power only on an application being made to it by a person owning an interest in the land to which the existing planning permission relates. There is no statutory definition of “not material”, but that is perhaps unsurprising in that this must always be dependent on the context of the overall development scheme. Allowing for the obvious limitations of a section 96A application, in the appropriate case there are considerable advantages for the landowner. There is no obligation on the LPA to publicise or consult on the application, and it must determine the application within 28 days of receipt, or such longer period as may be agreed with the applicant. (The landowner, on the other hand, must notify anyone who owns land that would be affected before submitting the application.) Guidance issued by the DCLG also advises that there is a right of appeal to the Secretary of State under section 78 of the Act against refusal or non-determination – though this appears to conflict with the view presently stated in the Encyclopedia of Planning Law and Practice. John Martin