Section 73 of the Town and Country Planning Act 1990 (the “1990 Act”) can be an extremely useful tool to developers, enabling them to seek variations to a planning permission without the need to submit a new full planning application. However, the scope of variations permitted under Section 73 is limited and has been widely discussed by the courts since it came into force.
What does Section 73 of the 1990 Act say?
Section 73 of the 1990 Act applies to applications to develop land without complying with conditions that are attached to a previous planning permission.
In deciding such an application, the Local Planning Authority shall only consider the question of the conditions to which the previous planning permission was granted and may either:
1. grant planning permission subject to different conditions to those imposed on the previous planning permission;
2. grant planning permission unconditionally (i.e., without any conditions); or
3. refuse the application.
Section 73 of the 1990 Act specifically provides that an application cannot be made under this section if the previous planning permission has already expired, nor can it be used in England to extend the time limit within which the development must be begun.
What have the courts said?
Finney v. The Welsh Ministers [2019] EWCA Civ 1868
In the case of Finney v. The Welsh Ministers [2019] EWCA Civ 1868 the Court of Appeal ruled that Section 73 of the 1990 Act can only be used to vary the conditions of a previous planning permission; it cannot be used to vary the description of the development nor to impose any new or amended condition that is inconsistent with the description of the development.
In this case, planning permission was granted for, amongst other things, “Installation and 25 year operation of two wind turbines, with a tip height of 100m” and was subject to a condition requiring the development to be carried out in accordance with a set of approved plans. One such approved plan was an elevation plan which showed a wind turbine with a tip height of 100 metres.
The developer made a Section 73 application seeking a variation of this condition to substitute the elevation plan with a new plan that showed a wind turbine with a tip height of 125 metres.
The Court ruled that Section 73 could not be used to vary the original planning permission in this way as to do so would either require a change in the description of the development to increase the height from 100 metres to 125 metres or would result in a condition that was inconsistent with the description of development (i.e., the condition would refer to a wind turbine 125 metres in height but the description of development would refer to a turbine 100 metres in height).
Reid v. Secretary of State for Levelling-Up, Housing and Communities [2022] EWHC 3116 (Admin)
In the case of Reid v. Secretary of State for Levelling-Up, Housing and Communities [2022] EWHC 3116 (Admin) planning permission was granted for “34 self-catering holiday units, a 25-bed inn building, watersports building, storehouse and outfitters along with a commercial and educational unit, nature trails, cycle trails, pathways and family facilities. Re-routing a public right of way at Kilvington” and was subject to various conditions.
One of the conditions limited occupation of the premises to holiday accommodation only and prohibited the premises from being used for any other purpose, including any other purpose within Use Class C3 of the Town and Country Planning (Use Classes) Order 1987 (the “Order”).
A Section 73 application was made to remove this condition to enable the holiday accommodation to be used as residential dwellings on the basis that in the absence of such condition, a change of use from holiday to residential would not amount to development requiring planning permission as both uses would fall within Use Class C3 of the Order.
The local planning authority refused to consider the application on the grounds that the removal of this condition would require a change in the description of the development from holiday accommodation to residential dwellings which was outside of the scope of Section 73.
In deciding the case, the High Court found it difficult to envisage a situation where the removal of a condition could conflict with the description of development and ruled that the removal of the condition restricting use to holiday accommodation would not require any amendment to the description of development and so would fall within the scope of Section 73.
The High Court further went on to say that the way in which the development could change (if the Section 73 application were granted) from holiday to residential would not be because of anything within the description of the development but by operation of law. The removal of the condition would enable the applicant to rely upon the Order to use the premises for any purpose within Use Class C3 of the Order, whether that be holiday accommodation or residential dwellings, without the need to change the original planning permission’s description of development.
Armstrong v. Secretary of State for Levelling-Up, Housing and Communities [2023] EWHC 142 (KB)
In the case of Armstrong v. Secretary of State for Levelling-Up, Housing and Communities [2023] EWHC 142(KB) it was held that providing a variation is only proposed to the conditions of a planning permission and such variation neither requires a change to the description of the development nor is inconsistent with the description of development, there is no limit to the scope of the change under Section 73.
In Armstrong, permission had been granted for “Construction of one dwelling”. One of the conditions attached to the permission required compliance with various approved plans. The applicant submitted a Section 73 application seeking to substitute the approved plans with new plans which proposed a building in a different form and style to that originally approved.
The local planning authority refused the application stating that it sought to completely alter the nature of the development resulting in a development that would materially differ from the originally approved planning permission.
The Court ruled that there is nothing within Section 73 which limits any application to vary or remove a condition to “minor material amendments” or “non-fundamental variations”. Providing the application was limited to the non-compliance with a condition (and does not require a change in the description of the development nor is inconsistent with it) then it fell within the scope of Section 73.
R(on the application of Fiske) v. Test Valley Borough Council [2023] All ER (D)
In the case of Fiske, the High Court ruled that there is no power under Section 73 of the 1990 Act to impose a condition which creates conflict or inconsistency with the operative wording (i.e., the description of the development) of the original planning permission. The conflict or inconsistency does not have to be fundamental; if there is any conflict or inconsistency with the description of development, the proposed variation will fall outside of the scope of Section 73.
The facts of the case are that in 2017 planning permission was granted for “Installation of a ground mounted solar park to include ancillary equipment, inverters, substation, perimeter fencing, cctv cameras, access tracks and associated landscaping” subject to, amongst other conditions, a condition requiring the submission of full details for the substation (the “2017 Permission”). Those details were later submitted and approved.
In 2021, a second planning permission was granted within the application site of the 2017 Permission for a different substation and altered layout (the “2021 Permission”).
To enable the 2017 Permission and the 2021 Permission to operate together, a third application was submitted to vary the conditions of the 2017 Permission, the effect of which was to remove the development of the substation required by the 2017 Permission. This application was granted in 2022 (the “2022 Permission”) with a condition requiring compliance with plans which did not include a substation (the “Plan Condition”).
In quashing the 2022 Permission, the High Court ruled that the Plan Condition conflicted with the operative wording of the 2017 Permission. The description of development in the 2017 Permission authorised the construction of a substation but the Plan Condition required compliance with plans which did not include a substation thereby prohibiting the construction of a substation in direct conflict with the description of development.
Whilst not required in this case, the Court also considered the ruling in Armstrong and whether the scope of Section 73 of the 1990 Act was limited to non-fundamental variations. The Court’s view was that it was and that “no fundamental alteration to the permission as a whole (even absent a conflict with the operative wording)” could be granted under Section 73 of the 1990 Act.
What does the National Planning Practice Guidance say?
Following the case of Armstrong, the Government have recently amended the National Planning Practice Guidance (the “NPPG”) titled ‘Flexible options for planning permissions’ in relation to the scope of Section 73 of the 1990 Act.
The NPPG (as amended) says that:
“There is no statutory limit on the degree of change permissible to conditions under s73, but the change must only relate to conditions and not to the operative part of the permission”
and that:
“Section 73 cannot be used if there is no relevant condition in the permission listing the originally approved plans.”
Commentary
Current case law establishes that Section 73 of the 1990 Act cannot be used for a proposed variation where it would result in any conflict or inconsistency with the operative grant (i.e., the description of development) of the original planning permission.
The case of Armstrong and the NPPG go further to say that, providing there is no conflict or inconsistency with the operative grant of the planning permission, there is no limitation on the scope of variation that could be requested in respect of a condition under Section 73. The case of Fiske does cast doubt on this and whilst the Court’s comments are not binding, they are persuasive so that it is possible a future court could make a similar ruling.
It is therefore important that any application being made pursuant to Section 73 of the 1990 Act is carefully considered.
Our experienced team of planning lawyers are on hand to advise or assist you on amending planning permissions and can be contacted by telephone on 01392 207020 or emailed at enquiries@tozers.co.uk
