High Court confirms that Section 73 applications are not limited to “minor material amendments”

In the recent case of Armstrong v Secretary of State for Levelling-Up, Housing and Communities & Anor [2023] EWHC 142, the High Court has held that a planning inspector was wrong to reject an application under s73 of the Town & Country Planning Act 1990 on the grounds that the application amounted to a “fundamental variation” to the planning permission such that the application fell outside the scope of s73.

In 2007, planning permission was granted for a new dwelling and was later subject to a non-material amendment which imposed a condition requiring the development to be carried out in accordance with the plans that had been submitted with the original application. The applicant sought to substitute the plans by way of a s73 application, but that was refused by the local planning authority.

On appeal, the planning inspector concluded that the nature of the development proposed under the revised plans was substantially different to that under the original planning permission. This was even though it was common ground that it did not involve any conflict with the description of the development in the permission. Accordingly, the changes went beyond the parameters of a minor material amendment and could not be dealt with by way of a s73 application.

The appellant challenged this decision in the High Court which held that there is nothing in the wording of s73, or the Town & Country Planning Act 1990, that limits the application of s73 to “minor material amendments”, or amendments which weren’t a “substantial” or “fundamental” variation. They contrasted this with s96A of the Act which is expressly constrained in its scope to “non-material changes”.

The court held that the inference in the Planning Practice Guidance that s73 is limited to “minor material amendments” introduces an impermissible gloss on its scope.

The court went on to say that Section 73 is limited to applications for planning permission for development of land “without complying with conditions subject to which a previous planning permission was granted”.

Therefore, it cannot be used to vary or impose a condition where the resulting condition would be inherently inconsistent with the operative part of the planning permission.  The power under s73 is therefore already a limited one and there is therefore no obvious need, justification or statutory purpose for reading in additional restrictions which are not expressed on the face of the statute.

This case is to be welcomed in that it confirms that the scope of s73, which provides useful flexibility in varying planning permissions, can – in principle – extend to substantial changes to development proposals.