Planning Freethinking February 2023: Scope of Section 73 planning applications – recent cases

In this month's Planning Freethinking edition, we discuss two recent cases involving Section 73 (S73) planning applications, and provide our views for applicants and decision-makers alike. 

Recent cases

Armstrong v Secretary of State for Levelling-Up, Housing and Communities [2023] EWHC 176 (Admin)

Cornwall Council refused a Section 73 application (“S73 Application”) to vary the plans for construction of a new dwelling under an extant planning permission. The Council determined that the proposed revised design completely altered the nature of the development and would result in a development that would differ materially from the approved permission – thereby falling outside the scope of Section 73 TCPA 1990.

The Claimant appealed, arguing that although a S73 Application is sometimes referred to as a “minor material amendment”, the terms of Section 73 do not restrict the magnitude of the changes to conditions that can be sought. This is controlled by case law that limits changes to conditions that are not a fundamental alteration: R v Coventry City Council, ex p. Arrowcroft Group plc [2001] PLCR 7.

On appeal, the Inspector determined that the S73 Application gave rise to a fundamental variation to the extant permission (in circumstances where the application did not conflict with the description of the development) such that it could not be considered as a minor material amendment under Section 73.

In quashing the Inspector’s appeal decision refusing planning permission, the High Court concluded that the Inspector’s decision was unlawful and re-confirmed the legal position as follows:

• There is nothing in the legislation that limits a S73 Application to “minor material amendments”, or to amendments which do not involve a “fundamental” variation where there is no conflict with the operative part of the permission.
• Finney v Welsh Minsters [2019] EWCA Civ 1868 clearly sets out the limited scope of Section 73; there is no need to read in further limits which are not otherwise expressed. Section 73 is clearly intended to be a provision which enables an applicant to remove or vary a condition, provided that the S73 Application does not conflict with the operative part of the permission.

 Reid v Secretary of State for Levelling Up, Housing and Communities [2022] EWHC 3116 (Admin)

Newark and Sherwood District Council granted permission in 2015 for a development with a description of development consisting of self-catering holiday units and other development subject to a condition which required that, notwithstanding the Town and Country Planning (Use Classes) Order 1987 (“UCO”), the site had to be used for the purpose of holiday accommodation only.

A S73 Application sought to remove this condition which restricted UCO rights, to then allow the holiday units to be used for permanent residential accommodation without the need for a new planning permission. The Council determined that the S73 Application was invalid.

The Inspector dismissed the applicant’s appeal. The Inspector concluded that removing the condition would result in unrestricted use, conflicting with the original description of the development as ‘holiday accommodation’ and giving rise to a ‘fundamental change’ to the use of the site.

The High Court allowed the Claimant’s legal challenge, quashing the Inspector’s appeal decision:

• The Inspector should have considered that use of the site may not be exhaustively written into the description, but may arise by the operation of law (such as UCO rights). Where a use falls within a broader use class in the UCO, the description of development only limits the first use of the development and does not prevent later changes within the same use class. Therefore, in this case, if the condition could be changed, the applicant could then rely on any other uses in the same use class (Class C3 dwellinghouse use).
• The Inspector had failed to fully appreciate this point and was wrong to treat the change sought to the condition as changing the description of development.
• The operative part of the permission allowed use of the holiday units for residential purposes initially; however, this was also barred for subsequent use by the condition which removed the UCO rights. Therefore, even though in reality removing the condition would result in allowing permanent Class C3 residential use, it would not alter the operative part of the permission. The operative part of the permission remains intact, albeit in an unconditioned way and allowing the change to take place by only discharging the condition in question was permissible under Section 73.

Our view

These cases are useful reminders, for applicants and decision-makers alike, of the need to carefully consider the scope of a S73 Application.

The Armstrong case sets out that the scope of changes that can be made on S73 Applications is broad, but not unlimited. Applicants and decision-makers should carefully consider whether changes are a fundamental alteration and not seek to limit this scope further.

The Reid case importantly confirms that it is permissible for a decision-maker to rationally adhere to the existing description of permitted development while at the same time deciding to remove conditions which restrict UCO rights through a S73 Application (or potentially in some instances a S96A non-material amendment application) and, thereby, allow for changes in the use of a property within the same use class without the need for a fresh, separate planning application for a change of use. The Reid case adds some welcome flexibility on S73 Applications following the restrictive effect of the Finney case.

Please do not hesitate to get in touch with a member of the Planning Team if you wish to discuss.