The basics #14 - what we keep getting wrong about section 73
“You’re saying the PPG is… wrong?!?!?”
Can you smell it? That freshness in the air? Have you noticed the odd dash of colour in the grasses? Early buds starting to peek through into the sun. Oh, we’ve almost made it, friends. Spring - just around the corner. All of which can only mean one thing:
In the future, we will all be housing minister for 15 minutes. So clear your diary. But for now, welcome to the stage: Rachel Maclean. 6th - yes your read that right - 6th housing minister since February 2022. I mean. Wow. Can you name them all? Come on - no Googling! Urgh. To state the obvious: our planning system has no hope, and I mean no hope at all, without some consistency in political leadership. Lucy Frazer barely had time to learn all the right non-committal platitudes (“the right homes, in the right places”) before she was promoted. Will Rachel Maclean make it to the summer? We should hope so. Time to get serious, you might’ve thought. The planning ministry shouldn’t be an internship programme for ministers bound for bigger briefs.
In other news, the clock is running out to get in your responses to the NPPF consultation. 2nd March, pals. Tick tock. You know what I think about it all. But don’t let that put you off!
Meanwhile, the planning courts have been busy:
How much, if at all, should new developments should fund the NHS through section 106 contributions? For an answer, read this judgment. A full post on its implications to follow. But it’s a thorough and fascinating walk through the relationship between NHS funding and s.106 payments from Mr Justice Holgate (full disclosure: I appeared for the promoter of the relevant development of 2,750 homes and strategic employment uses to the East of Lutterworth).
How do you define a “project” for the purposes of environmental impact assessment? An age-old problem which has spawned case after case in the courts. Here’s the latest one: Ashchurch. A story about a bridge to nowhere. Turns out the bridge had to be considered for EIA purposes alongside the many thousands of homes it would unlock. Again, more on EIA development and the risk of “salami-slicing” projects up too thinly in a future post.
But for today, another topic. Back to some essentials. So rest a spell, would you. Pop the kettle on. Feet up. And settle in for 3-4 minutes of some good old fashioned planoraks #basics.
Our topic…. Section 73. Variations (or are they?).
Deep breath. OK. Off we go:
Let’s talk about the curious incident of Mr Armstrong and his super new house in Portwrinkle on the south coast of Cornwall. AKA… Armstrong vs. SoSLUHC - judgment here. A very useful case. Well done Mr Armstrong. And well done James Strachan KC, who has produced a brilliant and really helpful judgment. A one-stop shop, I think, for the law as it now stands on our dear old friend: Section 73 of the Town and Country Planning Act.
Section 73, I hear some of you ask. What was that one about again? It’s a provision that we all think we know about but, as Mr Armstrong’s case reminds us, lots of us just keep getting it wrong.
Back in 2020, I wrote 2 very short back-to-basics posts about section 73:
“Changes” which whizzed through 73 its key contours are.
“Back to the drawing board” which took things a little further after a run of interesting cases.
They set out a few headlines, and the good news is that the headlines all just about still work:
A Section 73 application is an application for a fresh and independent planning permission (aka 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 separate, 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.
Which takes us back to Mr Armstrong. He already had a consent to build a lovely beach house in Cornwall - lucky duck. The permission was for the “construction of one dwelling”. But he wanted to change it. From an “irregularly-shaped boldly modernist house” to an “alpine-lodge style” house. And who can blame him.
Changing the design wouldn’t involve re-writing the description of development (i.e. it’d still involve the “construction of one dwelling”). But he was proposing a fundamentally different design. So the plans subject to planning conditions in the original consent would all have to change. But the Council refused a s.73 application to change those plans on the basis that the new scheme “completely alters the nature of the development and would result in a development that would differ materially from the approved permission” so falls outside the scope of s.73. A Planning Inspector agreed. Mr Armstrong wasn’t having it, and took the Government to court. And he won.
James Strachan’s careful and thorough judgment shows us (at least) 5 things that we continue to get wrong - time after time - about section 73 applications. We get them wrong, in large part, because the Planning Practice Guidance on section 73 applications is encouraging us to get it wrong (which no doubt after this Armstrong judgment is finally going to be re-written).
How do we keep getting it wrong? Here are 5 big take-aways:
1. Does a s.73 consent amend / vary / modify the original permission?
No (see above).
If you succeed, you end up with 2 permissions. Not a single modified permission. A permission under section 73 takes effect as an independent permission to carry out the same development as previously permitted, but subject to the new or amended conditions.
2. Are s.73 applications limited to (as the PPG calls it) “minor material amendments”?
No.
Mr Armstrong’s new Swiss Chalet design wasn’t a minor amendment. It was a completely different design. But that didn’t take it outside the scope of section 73.
And that is because, albeit the PPG talks about “minor material amendments” there is nothing in s.73 which limits an application to vary or remove a condition to "minor amendments" or to amendments which do not involve a “substantial” or “fundamental” variation to the original scheme.
3. Is s.73 excluded for applications which propose a "fundamental or substantial" variation to the original permission?
No.
Again, the key question is whether the new scheme proposed under section 73 is consistent with the operative part of the original permission. If the new scheme fits within the original description of development, that’s what counts. Even if the new scheme is fundamentally different to the old scheme.
There are several older cases which can be read as suggesting some different - i.e. no s.73 applications for “fundamental” changes. But those older cases are (now) explained as being cases like Finney where there would have been an inconsistency between the new scheme and the operative part of the earlier permission.
4. Can a s.73 application alter / be inconsistent with the description of the development contained in the operative part of the existing planning permission?
No.
This is now the orthodoxy post-Finney, where the Court of Appeal made clear that:
“[s.73’s] purpose is to give the developer "relief" against one or more conditions. On receipt of such an application section 73(2) says that the planning authority must "consider only the question of conditions". It must not, therefore, consider the description of the development to which the conditions are attached. The natural inference from that imperative is that the planning authority cannot use section 73 to change the description of the development.”
5. Can we rely on the PPG?
No.
In this case, the Inspector relying on the PPG’s idea of “minor material amendments” was wrong, the SoS didn’t try to defend it, and the court described it as “liable to confuse” and putting an “impermissible gloss the scope of s.73 which has the propensity to misdirect the reader”.
All of which may make you wonder about the usefulness of Levelling Up Bill’s proposed new section 73B. Under that proposal, you can put in a planning application which - like the current section 73 - would be for a brand new consent. You’d do it with reference to an existing permission. And you’d need to show that the new scheme’s “effect will not be substantially different from that of the existing permission”. In determining the application, the authority would be restricted to considering the ways in which the existing and proposed scheme are different from one another.
Remember, of course, we already have section 96A and the power to make changes which are “not material”.
On the face of it, section 73B could be a helpful step in the right direction by allowing for:
Changes which - unlike section 96A - are indeed material, but not so mega that they would lead to substantially different effects.
Changes not only to the conditions attached to an existing consent, but also to the description of development where required (aka the Finney issue), so long as the effects of that change are not substantially different.
Watch this space.
But for now, the message is: if you want to understand the scope of section 73 applications, read Armstrong. Do not read the PPG (and they tell us planning isn’t user friendly!).
Good luck with those NPPF consultation responses, planoraks. Hang in there. In all the chaos. Enjoy these slightly warmer, longer evenings. Stay well! And of course, whatever else you do, more important than ever… remember to #keeponplanning.
