The High Court recently clarified in Mikael Armstrong v Secretary of State for Levelling- UP, Housing and Communities, Cornwall Council [2023] EWHC 176 that section 73 TCPA 1990 is not limited in scope to “minor material amendments”.
Whilst the Government’s Planning Practice Guidance infers the ability to use s73 for “minor material amendments”, this case reminds us that s73 is not defined by that concept.
Armstrong concerned a planning permission for the construction of a single dwelling. The application sought to remove a condition which required the development to be carried out in accordance with specific plans. The effect of the variation would be a dwelling of a different form and architectural style to that originally proposed. However, after reading the planning permission as a whole, the Court was not convinced that there had been a change in the basic principle of what was permitted on the site -being the construction of a single dwelling. The situation may well have been different if the description of development had been more prescriptive of the form of the building permitted.
This case reaffirms the principle in Finney v Welsh Ministers [2019] EWCA Civ 1868 that section 73 can only be used to amend conditions and cannot be used to vary the description of a development. It therefore follows that if an application for non-compliance with a condition does not lead to any conflict or inconsistency with the operative part of the permission, then such a variation may fall within section 73.
The need for statutory intervention has not gone unnoticed and the Government is proposing a new section ‘73B’ under the Levelling-up and Regeneration Bill - to expressly allow “minor material amendments” to permissions. The Bill is currently at the House of Lords committee stage so it may be some time before ‘73B’ is available.
