Back to the drawing board: the state of the law on section 73 “variations”
Even in the White Paper’s brave new world, we will need - at least from time to time - to take ourselves back to the drawing board. As this year’s taught us, things change. They can change quickly. And sometimes planning permissions need to change with them.
It’s been a big 12 months for the law on amending planning permissions. From Lambeth last summer in the hallowed halls of the Supreme Court, through to Finney in the Court of Appeal in November all the way up to last week with Mr Justice Holgate (top dog on the Planning Court) giving an important judgment in Norfolk Homes.
So - got a permission you’d like to vary? How about a 5 minute summary of where the law stands after this trifecta of important cases? Don’t worry. Just 5 minutes. Then you can get back to thinking big thoughts about Planning for the Future (and if it helps, the big thoughts this blog’s been thinking so far are here).
Right. So. Section 73. What’s going on there?
Well, shall we start with the Government’s Planning Practice Guidance? Which tells us section 73 is a way of “amending” your planning permission. Right? Wrong.
Here are 5 headlines:
A section 73 application is an application for a fresh and independent planning permission (which we’ll call Permission B) without complying with one or more conditions from your old planning permission (Permission A). Before section 73’s predecessor, if you got a permission and you didn’t like one of the conditions, you had 1 option: appeal. With all the cost and delay that brings, plus the risk you lose everything.
Section 73 avoids that risk. The only things up for grabs are the conditions. Should the permission be subject to different conditions? No conditions at all? Or the same conditions - if it’s that 3rd option, your section 73 application fails. No Permission B. But - thank goodness - you still have Permission A untouched.
And if you succeed? Well, you don’t “amend” Permission A. No - you end up with 2 seperate, independent permissions: Permission A and Permission B. And you can decide which of them to implement.
What can’t section 73 do? You can’t extend time for starting your permission (what starts your permission? Well, this does) or for applying for reserved matters. Plus, after Finney, Permission B can’t alter the description of development in Permission A, or include a condition which purports to alter that description.
Even though the focus is on conditions, when deciding a section 73 application, the LPA still considers material planning considerations (i.e. this stuff) and policies as at the date of Permission B. It isn’t stuck with the world as it was when Permission A was granted.
Got that? It’s not a variation. It’s a fresh permission. So what? Well, Lambeth and Norfolk Homes are important cautionary tales of what can go wrong when we think about section 73 as a way of varying Permission A, rather than a route to a fresh and independent Permission B. What do they show us?
LPAs should remember to (re-)impose all of the Permission A conditions on Permission B (not just the conditions which the s.73 application is about). That said, in a case where Permission A had already been implemented but Permission B (erroneously) didn’t include all of those Permission A conditions, a reasonable reader might still just about work out that Permission B was meant to include the Permission A conditions. This is the Lambeth point. It is TRICKY. In the extreme. And it means if you are the happy recipient of a s.73 permission, you may well need legal advice (sorry! ☹️) to work out which if any of the planning conditions on earlier consents still apply.
Unless a planning obligation under section 106 makes it clear that it covers not just Permission A but also any subsequent variations of Permission A, you’ll need a fresh section 106 agreement for Permission B. This is the Norfolk Homes point, and again - a very important point if your job involves drafting these planning obligations, or deciding whether you need to comply with them.
Finally, don’t forget Section 96A - which is a very different story. Under 96A, the result is not a fresh permission, but a variation of the original permission. No formal application or public consultation required. A refusal cannot be appealed to PINS. The key limit is, of course, that unlike for section 73, section 96A amendments cannot be material.
Always end with a brain-teaser: remember the White Paper? Well, one of its headline-grabbing ideas is that outline planning permission will be granted for some schemes on adoption of a local plan (i.e. in the “growth” areas). And that a masterplan for those schemes may be incorporated into that plan. Sound good to you? Well, what happens if things change. And you need to vary that masterplan after the plan’s been adopted. You can’t put in a planning application to vary a policy in a local plan. Can you? 😳.
Tune in next week, and stay well planoraks.
