Section 73 of the Town and Country Planning Act 1990 (S73) is titled "Determination of applications to develop land without compliance with conditions previously attached". The Planning Practice Guidance (which sets out how the government would like to see planning law interpreted) used to call a section 73 permission a minor material amendment. This has been shown to be inaccurate but is a useful piece of shorthand to set the scene. However, the actual power is much more extensive than this.
After a S73 application is granted on an original permission there is an entirely new permission which is related to the original permission, but which has different conditions. The original permission remains fully intact exactly as it was before and you have a second permission (related to the original permission) with some different conditions (and some the same).
From the legislation, a S73 permission can't extend the time for starting the permission or extend the time for reserved matters applications. So, a common question has been what can a S73 permission do?
There have been a run of cases in the High Court and Court of Appeal which have examined what can and can't be done with S73 applications. This has, at times, been confusing and contradictory. The latest case is Test Valley BC v Fiske [2024] EWCA Civ 1541. Well at last we have clarity!
- A S73 permission cannot alter the operative description of development.
- Conditions attached to a section 73 permission cannot have the effect of altering the operative part of the earlier permission.
- S73 is not subject to any further limitations apart from those contained in 1 and 2 above.
So what does this mean?
The description of development for the S73 and the original permission have to be the same and any conditions can't change (either add to or take away from) what is permitted by the description of development. In other words, conditions can't authorise something extra that is not in the description (which can't be changed this way) and conditions have to authorise everything that is in the description of development.
The earlier case of Armstrong vs. Secretary of State for Levelling-Up, Housing and Communities [2023] EWHC 176 (Admin) is correct and in that case there was permission for one dwelling in Cornwall which was originally going to be a modernist house. Mr Armstrong proposed to change this to permission to allow for a more traditional dwelling using the section 73 procedure. The Council weren't happy and refused the application, but the court said it was fine and sent the decision back to the Council. The court had decided that the description of development did not limit the type of house he was able to build and so the Council could not lawfully refuse the application.
The Fiske decision is likely to mean that councils require more detail in the description of development for planning permission and restrict the scope of S73 permissions that way. In the meantime, there may be a flurry of S73 applications in relation to already granted permissions which have broad descriptions of development.
If you would like further information or to discuss this please contact
Jade.Chalmers@howardkennedy.com
or Bob.Sadler@howardkennedy.com
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