Applications under s73 of the Town and Country Planning Act
Marisia Robson and Rory Stracey analyse a new case on the scope of s.73 applications.
Whether an application to vary conditions is capable of falling within the scope of S73 of the Town and Country Planning Act 1990 is a matter of planning judgement, but S73 is not limited to "minor material amendments". The question is whether the application gives rise to inherent conflicts or inconsistencies with the operative part of the planning permission.
In Armstrong v Secretary of State for Levelling Up, Housing and Communities [2023] EWHC 176 (Admin) the High Court ruled that the Secretary of State's decision to refuse a S73 application on the grounds that the proposal was "materially different" to the originally consented scheme was unlawful and the High Court quashed the decision.
Background
In 2007, Caradon District Council granted planning permission for the construction of one dwelling on the site subject to nine conditions. The permission stated that the Council gave "permission for the development specified in the plan(s) and application", but none of the conditions referred to any of the drawings or plans submitted with the application. The decision notice included an "informative" which stated "for the avoidance of doubt the Drawing to which this decision refers are…".
In 2020, Armstrong applied for a non-material amendment under section 96A of the 1990 Act (the "NMA") to add a condition 10 to the 2007 permission, that the development be carried out in accordance with the plans listed. The NMA incorporated some, but not all, of the drawings referenced in the informative. The Council granted the NMA.
Armstrong made a further application under section 73 of the 1990 Act seeking to carry out the development without compliance with condition 10. Drawings were submitted with that application and show the dwelling in a different form and style, together with a supporting statement which stated that the design had a similar footprint to that originally approved but incorporated design cues from a "Swiss Chalet" style house that had occupied the site previously. The Council refused the s73 application on the basis that "the proposed revised design completely alters the nature of the development and would result in a development that would differ materially from the approved permission" therefore going beyond the scope of section 73.
Armstrong appealed against the Council's refusal and in dismissing the appeal, the inspector concluded, similarly to the council, that the redesign was not a minor material amendment in accordance with the Government's planning guidance.
The challenge
Armstrong statutorily reviewed the Inspector's decision.
Strachan DHCJ quashed the appeal decision, finding that the inspector "misdirected himself by reference to the PPG and its concept of 'minor material amendments'." The Deputy Judge clarified that:
- There is nothing within the language used in section 73 which restricts an application to vary or remove a condition to minor material amendments or a non-fundamental variation. If this was Parliament's intention, it would have done so expressly.
- Section 73 is intended to be a provision that enables a developer to remove or vary a condition, provided such application does not conflict with the operative part of the planning permission. If Parliament had intended the power to restrict its application further, it would have been expressly stated.
- Provided there is no inherent conflict or inconsistency with the operative part of the planning permission, the single dwelling in this case, the proposed change can be assessed on its planning merits.
Armstrong illustrates the need to carefully consider the scope of applications made under section 73 and whether proposed changes are a fundamental alteration, as although the scope of changes is broad, it is not unlimited.
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