Material amendments to planning permissions

An ongoing government consultation (see here) is seeking views on a number of important changes proposed to the planning regime in England, which consultation closes in just under 3 weeks (at 11.59pm on 1 May 2024).

One of the proposals concerns: “the ability to vary planning permissions in a proportionate, transparent and timely manner”.

Existing routes for varying a planning permission

There are currently two legislative routes (under the Town and Country Planning Act 1990 (TCPA)) by which developers may apply to make variations to planning permissions:

• Section 73, under which an applicant may seek to vary one or more planning conditions imposed on a planning permission; and
• Section 96A, under which an applicant may seek to make non-material amendments to a planning permission.

A successful application made under section 73 will result in a completely new planning permission being granted (in contrast with an application made under section 96A). The applicant is then free to decide whether to implement the original permission or the newly granted permission.

Limitation on scope of section 73 applications

But, as has been confirmed in the Court of Appeal decision in Finney v Welsh Ministers and others [2019], section 73 only allows a local planning authority (LPA) to consider a variation of the conditions imposed on the planning permission. Section 73 cannot be used to amend the description of the development to which those conditions relate. If the LPA considers that the conditions should not be altered but is happy for them to apply to an amended development, it cannot then grant permission under section 73 with an altered description (but subject to the same conditions); it must refuse the application. It also cannot vary any condition that is at odds with, or by its nature would necessitate a change to, “the operative part of the permission” (as referenced in this government guidance). As such, the scope of section 73 is in effect limited to non-material amendments.

Legislative response – new section 73B route

The Levelling-Up and Regeneration Act 2023, which received Royal Assent last October, contains provision, once brought into force (it isn’t yet), that will add a new section 73B to the TCPA. Section 73B will enable material variations to be made to planning permissions, including to the description of the development (but subject to the “no substantially different” test below). And, as with section 73, a successful application will result in a completely new planning permission being granted but one that will (and must) not affect the validity of the existing permission. So the applicant will remain able to choose which permission it wishes to implement. To this end, the government says in the consultation that its “proposed objective is for the section 73B route to replace the use of section 73 to deal with proposals for general material variations to development granted planning permission (such as the use or design of the development). Section 73 would return to focus on the variation of specific conditions.”

Limitation on scope of section 73B applications

It is important to note the following in respect of any application that a developer may wish to make under section 73B (once brought into force):

1. The existing permission for which the section 73B variation is being sought cannot be one that was itself granted under section 73, section 73A or another section 73B permission, nor a permission granted by development order; and

2. Any planning permission granted under section 73B cannot be “substantially different” to the existing permission (including any newly described development). The government recognises here that, as section 73B does not define the “substantially different” test, the extent to which the use of section 73B can be used may be limited, as it will be down to the discretion of individual planning authorities on a case-by-case basis. This is likely then to cause uncertainty for developers, as well as inconsistency of approach between LPAs. The government is therefore inviting views in its consultation “about whether guidance should play a role in promoting common approaches across local planning authorities”.

Overlapping permissions

There has also been recent case law (Hillside Parks Ltd v Snowdonia National Park Authority [2022]) in relation to the treatment of ‘overlapping’ (or ‘drop-in’) permissions which has cast doubt on the scope to which such permissions can be used where a subsequent permission is granted for an alternative development on a section of a larger development for which planning permission has already been granted and remains capable of being implemented.

The government’s consultation (see link above) therefore seeks views not only the detail of how section 73B is to be implemented but also on the treatment and role of drop-in permissions “to ensure there are effective, proportionate and transparent routes to manage post-permission changes to development”.

Other consultation proposals

In addition to the above, the consultation seeks views on a number of other proposed planning reforms, including proposals to:

• introduce a new ‘Accelerated Planning Service’ for major commercial applications, as announced in last year’s Autumn Statement - reducing the current (and often exceeded) 13-week statutory period (16 weeks where application is subject to an EIA) to 10 weeks in return for a higher application fee (but whether the new service will be mandatory or optional where certain criteria are met has yet to be decided);
• introduce a new system for measuring the speed of decision-making by local planning authorities, intended to address government concerns over the high use of ‘extension of time’ agreements; also a planned reduction in the assessment period for the speed of decision-making, from 24 to 12 months "to ensure that both improvement and underperformance are identified effectively at an earlier stage"; and
• extend the scope of ‘expedited written representation’ procedures, currently available for determining appeals of less complex, small-scale householder and commercial appeals, so as to make them available for the majority of ‘written representation’ planning appeals (other than non-determination appeals and appeals against an enforcement notice).

Katherine Evans says: “Following ‘Finney’, the provisions of section 73B were drafted to solve the problems of section 73 applications that would be incapable of being granted as the description of the development would not be consistent with the amended condition. Unfortunately, the decision in ‘Hillside’ has now created even bigger problems that section 73B is unlikely to solve. Added to this, the words “substantially different” have no current legal meaning. So, unless there is guidance on what this is meant to mean, legal disputes are going to have to provide precedent in order to guide applicants which will take time to find their way through the courts.”

We are tracking the implementation of the legislation that will bring section 73B TCPA into force and will provide an update as and when this happens.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at April 2024. Specific advice should be sought for specific cases. For more information see our terms & conditions.