In a recent case: Armstrong v Secretary of State for Levelling Up, Housing and Communities, the High Court gave guidance on the types of applications that can be made under s73 of the Town and Country Planning Act 1990.
It held that there was nothing within the section which provides that applications can only be made for non-material or minor material amendments to existing planning permissions. It referred to the judgment in Finney v Welsh Ministers which set out the limited scope of the section, which was to enable an applicant to remove or vary a condition, provided that it did not change the nature of the development which had been permitted.
The High Court held that, in the case before it, no such change was envisaged, since the proposed variation by the applicant did not involve any change in the description of the development, which was still for the erection of a single dwelling.
The claimant wanted to vary the design of a dwelling it was building after development commenced. It applied under s73 for permission to allow the construction to be carried out in accordance with different plans to those that had been originally submitted, by variation of a condition attached to the original planning permission. Cornwall Council and the planning inspector refused permission on the ground that the application involved a “wholesale redesign” of a “substantially different nature”.
The Court held that the inspector had erred in law and that the s73 application was lawful, since the Claimant’s application was not a fundamental variation of the planning permission. It did not involve any conflict with the description of the permitted development as a single dwelling, but rather just involved the variation of a condition attached to the planning permissions.
This welcome guidance from the High Court means that applicants who wish to apply to vary a condition attached to a planning permission can do so under s73, even where the variation sought is not a minor amendment, so long as it does not involve a “fundamental variation” which would change the nature of the development or conflict with the description of the permitted development.
This is much welcome news for all developers who will often want to use s73 applications to achieve variations to planning permissions, as opposed to applying for a whole fresh planning application for reasons including Community Infrastructure Levy implications. To allow maximum scope for use of s73 variations applications in the future, always therefore try and keep the description of development as wide as possible.