Section 73 TCPA 1990: Recent Case Law and the Emerging Role of Section 73B
Posted on in Planning, Environment & Licensing
This article considers three recent legal decisions on the application of section 73 of the Town and Country Planning Act 1990 (“TCPA 1990”) and assesses the future operation of that provision in light of section 73B, introduced by the Levelling-up and Regeneration Act 2023 (“LURA 2023”).
The Structure of a Planning Permission
The starting point is the anatomy of a planning permission itself. In Pye v Secretary of State for the Environment [1998] 3 PLR 72, Sullivan J explained at paragraphs 85–86 of his judgment that a planning permission comprises two elements:
“…not merely the description of the development in the operative part of the planning permission … but also the conditions subject to which the development was permitted to be carried out.”
This distinction between the operative part (or description of development) and the planning conditions attached to a planning permission underpins the operation of section 73.
A Section 73 Permission is a New Permission in Law
A permission granted under section 73 gives rise, as a matter of law, to a new planning permission. In Lambeth London Borough Council v Secretary of State for Housing, Communities and Local Government [2019] UKSC 33, Lord Carnwath described the function of section 73 at paragraph 11 of his judgment:
“A permission under section 73 can only take effect as an independent permission to carry out the same development as previously permitted, but subject to the new or amended conditions.”
The requirement that the development must remain “the same development” is central to the limits of section 73.
Finney v Welsh Ministers & Others
In Finney v Welsh Ministers & Ors [2019] EWCA Civ 1868, the Court of Appeal considered the scope of section 73 in the context of a wind energy scheme.
Planning permission had been granted in 2016 for two wind turbines. The description of development specified turbines with a tip height of up to 100 metres, and the approved plans reflected this. The developer applied under section 73 to vary a condition requiring compliance with the approved plans, substituting plans that showed turbines with tip heights of up to 125 metres. The stated purpose was to “enable a taller turbine type to be erected”.
The local planning authority refused the application, but a Planning Inspector allowed the subsequent appeal. In doing so, the Inspector granted a new permission under section 73 with an altered description of development to remove reference to the height of the turbines. That decision was challenged by an interested party under section 288 TCPA 1990.
The Court of Appeal held that:
- Section 73 may only be used to vary or remove conditions attached to a planning permission.
- It cannot be used to amend the description of the development itself.
Finney applies equally in England and Wales (see paragraph 12 of the judgment).
Lewison LJ provided important guidance, at paragraph 45 of his judgment, on the appropriate routes for change:
- Where a proposed change to the description of development is non-material, section 96A TCPA 1990 provides the correct mechanism. That provision permits non-material amendments, including to the description or operative part of the permission.
- Where a proposed change to the description of development is not non-material, a fresh planning application is required. (NB: until section 73B TCPA 1990 comes into force – see below).
Armstrong v Secretary of State for Levelling Up, Housing and Communities
The scope of section 73 was revisited in Armstrong v Secretary of State for Levelling-Up, Housing and Communities & Anor [2023] EWHC 176 (Admin).
The claimant had obtained planning permission for a single dwelling and later applied under section 73 to vary the approved plans' condition to change the building’s design. The local planning authority refused the application, and that refusal was upheld by a Planning Inspector, both decision-makers concluding that the revised design was materially different from what had been approved.
The High Court allowed the claimant’s challenge. It held that the decision-makers had applied the wrong legal test. The correct question was not whether the changes were materially different from what had originally been approved, but whether they conflicted with the operative part of the original permission.
As the description of development remained “a single dwelling”, section 73 was available. The materiality of the architectural design changes was irrelevant to the availability of the power in section 73, provided the description of development was unchanged, and the proposed amendments to the condition did not give rise to a conflict with the description of development.
The Court gave several reasons for its conclusion; we have picked out 6 key ones below:
- Section 73 contains no statutory limitation on the extent of change to the conditions; the only question is whether the application is limited to non-compliance with conditions.
- The provision is already restrictive in that it applies solely to conditions.
- Section 73 is an enabling provision, and Parliament did not confine it to minor or non-fundamental changes.
- Section 96A provides important context. Parliament expressly limited that power to “non-material” changes; there is no such limitation in the language of section 73 itself.
- Accepting a section 73 application can be submitted to seek potentially fundamental scheme changes, does not predetermine its outcome; such an application would still fall to be determined on the planning merits.
- Case law (including Finney, above) supports the position that the wording of section 73 should be given its plain and ordinary meaning.
Test Valley Borough Council v Fiske
In Test Valley Borough Council v Fiske [2024] EWCA, the Court of Appeal applied both Armstrong and Finney and confirmed that section 73 may be used to make even fundamental changes to an approved scheme, provided that:
- There is no change to the description of development; and
- The amended conditions remain consistent with that description.
On the facts, the section 73 permission purported to remove a substation that formed part of the original description of development and the approved plans. Because this conflicted with the operative part of the original permission, the section 73 approval was unlawful.
The decision reinforces the importance of ensuring that any scheme changes sought via amended conditions are consistent with the original description of development.
Section 73B: A New Statutory Route
Section 73B TCPA 1990 was introduced by LURA 2023 under the heading “Applications for permission not substantially different from existing permission”. It is intended to create a new statutory route for amending approved development.
Section 73B is not yet in force.
Once in force, section 73B will allow applications for a new planning permission in law (like section 73), which give rise to amendments to the description of development that go beyond the “non-material” changes permitted under section 96A. However, it introduces a new statutory threshold: planning permission may only be granted under section 73B if the local planning authority is satisfied that the amended scheme would not be “substantially different” from that permitted under the existing permission.
As a result, section 73B will not cover all forms of amendment. Where proposed changes would result in a scheme that is substantially different from the original permission, section 73 is likely to remain an important mechanism - provided there is no conflict with the description of development, or section 73 is used in combination with section 96A to overcome such conflict.
Looking Ahead
The Government has confirmed its intention to bring section 73B into force through secondary legislation, as well as to publish guidance on the appropriate use of:
- Section 96A (non-material amendments);
- Section 73 (permission to carry out development otherwise than in accordance with conditions originally imposed); and
- Section 73B (permissions not substantially different from the existing permission).
While section 73B is intended to become the principal mechanism for dealing pragmatically with (non-substantial) changes to schemes over time, the Government has stated that it is not designed to facilitate reductions in agreed planning obligations, including affordable housing.
Furthermore, the utility of section 73B is likely to be constrained by the fact that it cannot be used to secure amendments to permission granted under section 73 or section 73A (retrospective permission).
Key Takeaways
Mischaracterising the nature of a proposed change exposes applicants and authorities alike to legal risk, including unlawful permissions, successful legal challenges and consequent delay to development.
As the mechanisms for amending planning permissions become more numerous and nuanced, the experienced Planning Team at Tozers can help you secure flexibility for your development in a way which is robust, defensible and aligned with the evolving statutory framework.