Scope of section 73 applications wider than you might think?

Using section 73 of the Town and Country Planning Act 1990 ("the Act"), developers can vary or remove conditions attached to a planning permission.

Applications made under section 73 of the Act are commonly referred to as 'minor material amendment' applications, despite the statute making no express reference to these words. The judgment in Armstrong v Secretary of State for Levelling-Up, Housing and Communities [2023] EWHC 176 (Admin)("Armstrong"), recently handed down by the High Court, confirms that this conception is unhelpful and fundamentally incorrect.

The outcome of the court's decision in Armstrong is that we should refrain from considering section 73 applications in terms of 'minor material amendments' and that, so long as any proposed variations do not go so far as to amend the operative part of a planning permission itself, then the application should be able to succeed, whether or not the variation is minor or otherwise.

Historically, what has been the scope of section 73 applications?

Statute

The Act provides that section 73 applies to "applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted" (section 73(1)).

When receiving a section 73 application, the local planning authority ("LPA") must consider only the question of the conditions subject to which planning permission should be granted and either (i) grant planning permission with varied conditions or no conditions at all or ii) refuse the application (section 73(2)).

Case law

Several cases have dealt with the application of section 73 planning permissions and have provided insight into their workings, as well as key points for developers and practitioners to consider when dealing with them.

R. v Coventry City Council Ex p. Arrowcroft Group Plc [2000] 7 WLUK 647 ("Arrowcroft") concerned a judicial review of an LPA's resolution to approve a section 73 application. The question for the court was whether the LPA had the power to grant a new planning permission, where the varied conditions would be 'fundamentally inconsistent' between the conditions and description of the development. The court found that any altered conditions would have to be ones that could have been lawfully imposed under the original planning permission and, in this case, the new conditions did not satisfy that test. This was because the new proposal of constructing six non-food retail units was fundamentally different from the original proposal related to a single-variety superstore.

In another case, R. (on the application of Vue Entertainment Ltd) v City of York Council [2017] EWHC 588 (Admin), the judge considered the limits of section 73 applications and highlighted the fact that "section 73(2) does not limit in any way the nature of the condition, other than as to time, which can be amended under that section" [at paragraph 8]. The case involved a condition that had been varied, so that a sports stadium development could include a 13-screen, 2,400-person cinema complex, rather than one with 12 screens seating 2,000 people. It was held that a change to the condition in this case did not fundamentally alter the permission itself, which did not mention or define the size of cinema.

In John Leslie Finney v Welsh Ministers, Carmarthenshire County Council, Energiekontor (UK) Limited [2019] EWCA Civ 1868 ("Finney"), a section 73 application was made to vary one of the conditions of a previous planning permission relating to the tip length of two wind turbines. The description of the previous planning permission and its associated condition referred to a "tip length of 100m", whereas the variation provided for 125m. Although the inspector dealing with the application allowed the variation, the decision was held to be unlawful. This was because section 73(1) limits a LPA's considerations to the question of conditions only. Here, by allowing the variation of the condition, it would have the effect of also altering the description of the previous planning permission (specifying a tip height of 100m) and this was not permissible. The case is authority for the fact that section 73 applications cannot be used where their grant would lead to a variation to the description of a previous planning permission.

What is the definitive position in relation to the use of section 73 applications following the Armstrong case?

Despite the implication in the Hillside case that the use of section 73 applications is relatively limited in their scope, Armstrong has provided definitive guidance in this regard. The case concerned Mr Armstrong's 2007 planning permission for the erection of a new dwelling in Cornwall. Initially, the LPA refused a section 73 application to amend a condition which listed approved drawings, because in their view, the variation would change the design "from an irregularly-shaped boldly modernist dwelling to a dual-pitched alpine lodge style dwelling" and therefore alter the nature of the development completely.

Mr Armstrong appealed and the inspector who reviewed the matter dismissed the appeal on the basis that the design was very different and, as such, 'substantial'. Given that the amendment was substantial, it could not be merely a "minor material amendment." The inspector placed some weight on the Planning Policy Guidance ("PPG") which provides that one of the uses of a section 73 application is to seek a minor material amendment. "Minor material amendments" are not defined.

Mr Armstrong continued his fight in the High Court, where he succeeded. The court found that there was nothing in the wording of section 73 of the Act to limit the variation of a condition to "minor material amendments" and that the "terminology in the PPG introduces an impermissible gloss on the scope of [section] 73 which has the propensity to misdirect the reader." The true intention of section 73 was to allow developers to vary or remove conditions, provided that such variation or removal would not conflict with the operative part (that is, the description) of a planning permission. Further, the judge was not convinced that section 73 of the Act required there to be a non-fundamental variation of a condition, but if it did, he was not convinced that the inspector had applied the test correctly, given that he had misdirected himself by reference to the PPG and its concept of "minor material amendments."

What is the implication of Armstrong for developers?

There is no doubt that the decision in Armstrong will have a far-reaching impact for planning practitioners – in particular, those who for a long time have referred to section 73 applications as "minor material amendment applications." This terminology will have to change.

That said, the case arguably still leaves open the question of whether a 'fundamental variation' test should apply to planning officers and/or inspectors who are considering applications and appeals relating to section 73 applications. What appears to be crucial is that any applications made under section 73 should not go so far as to amend the operative part of a planning permission.

In this regard, it is pertinent to note the introduction of a new section 73B under the Levelling-Up and Regeneration Bill which, at the time of writing, is awaiting its committee stage and third reading in the House of Lords (having previously made its way successfully through the Commons). The new section will introduce a different type of planning application, the permission for which would allow a wider set of variations to existing planning permissions than is currently possible, including to the description of development. It is assumed that the new section will be a useful tool in resolving some of the limitations of section 73 applications and permissions, in particular amendments to the operative part of a planning permission.

We will be following the developments in relation to section 73 applications following the decision in Armstrong and will be updating our guidance accordingly. Watch this space.