Tag: amending planning permissions

Thank You Mikael Armstrong: New Case On Scope Of Section 73

Thank you also to my Town Legal partner Patrick Robinson who spotted this hand-down yesterday from the Planning Court: Armstrong v Secretary of State (Deputy High Court Judge James Strachan KC, 27 January 2023). 

Who is Mr Armstrong? Well Mr Armstrong had the benefit of a planning permission for the erection of a new dwelling in Cornwall with the wonderful address of The Beach House, Finnygook Lane, Portwrinkle. The planning permission dated back to 2007 but had been kept alive by way of minor implementation works. 

A house had previously stood on the site. This photograph from the application documentation on Cornwall Council’s planning portal gives a sense of its dramatic location:

Mr Armstrong made an application under section 73 of the Town and Country Planning Act 1990 to vary the approved scheme, by way of amendment of a condition which listed the approved drawings (a condition which had been added by way of section 96A, to enable use of section 73 – the now familiar approach following Finney (if any non planners or planning lawyers are still reading, you must think we are all mad)). 

The application was refused by Cornwall Council, with one reason for refusal:

“The proposed development seeks to change the design of the dwelling approved via, E2/06/01798/FUL, from an irregularly-shaped boldly modernist dwelling to a dual-pitched alpine lodge style dwelling. The application site occupies a highly prominent and sensitive coastal plot. The proposed revised design completely alters the nature of the development and would result in a development that would differ materially from the approved permission. As a result this proposal goes beyond the scope of Section 73 of the Town and Country Planning Act 1990 and is contrary to guidance within the National Planning Practice Guidance, specifically paragraph 001 Reference ID: 17a- 001-20140306.”

There are these images of the approved and proposed schemes, courtesy of Cornwall Council’s planning portal:

(Whilst not relevant to the legal issues, I note that the proposed revisions to the scheme would cause it more closely to resemble the dwelling that had previously been on the site). 

Mr Armstrong appealed. His appeal statement made these (entirely correct) points:

“a. although an application under section 73 of the 1990 Act is sometimes referred to as an application to make a “minor material amendment”, the terms of section 73 of the 1990 Act are not limited in that way and place no restriction on the magnitude of the changes that can be sought;

b. reference had been made by the Courts in the consideration of section 73 of the 1990 Act to not permitting amendments which amount to a fundamental alteration to the terms of a planning consent, but there was nothing of a fundamental nature such as scale, size, massing or footprint and positioning on the Site which would result in any significant change;

c. section 73 applications still receive the same amount of scrutiny as a full planning application and the process does not prejudice the ability for relevant parties to make representations”.

The appeal was determined by way of written representations. The inspector determined the main issue to be: “whether the proposal could be considered as a minor material amendment under section 73 of the TCPA 1990“.

(Alarm bells already…)

The inspector’s analysis includes the following passages:

“The original planning permission was for a bespoke dwelling in a contemporary architectural style, with the external materials being natural stone and cedar cladding. The approved plans show a multi-faceted building, with an organic form, including curved walls and sedum-covered roofs. By contrast, the proposed plans submitted with the section 73 application show a dwelling with a simple rectilinear form, rendered walls and a pitched slate roof. Consequently, although it is similarly sited, and has a comparable floorspace and volume, it is fundamentally different in its design, bearing virtually no resemblance to the approved building. The modifications are, therefore, substantial.


The appellant contends that the term “minor material amendment” infers that material changes are allowable under a section 73 application. However, the word “minor” qualifies the extent to which material changes should be considered via this route. In this case, the wholesale redesign of the house results in a development that would be of a substantially different nature than the one originally approved. In these circumstances, the PPG advises that a new planning application is necessary.”

He dismissed the appeal. 

Thankfully, Mr Armstrong didn’t give up on the entire pettyfogging planning system at that point but, as a litigant in person, challenged the decision in the High Court. 

And, as was only right in the face of this sort of reasoning from the inspector, he won! And in so doing, has provided further judicial authority for what planning lawyers end up saying again and again – the limits of section 73 are not confined by the question of whether there would be a minor material amendment to the approved scheme, but whether there would be a fundamental variation to the approved scheme (as that is the test previously set down in Arrowcroft and subsequent cases).

Deputy High Court Judge James Strachan KC’s gave no fewer than eight reasons why the inspector’s decision was unlawful:

“First, I consider the correct starting point must be the words of section 73 of the TCPA 1990 itself. As the Defendant accepts, there is nothing in section 73, or in the TCPA 1990, that limits its application to “minor material amendments”, or to amendments which do not involve a “substantial” or “fundamental” variation. On the face of the words used, s.73 applies to any application for planning permission for development of land “without complying with conditions subject to which a previous planning permission was granted” (see s.73(1)). It limits the local planning authority’s consideration to the “question of conditions subject to which planning permission should be granted (see s.73(2)). There are other limitations as to its scope such as those in ss73(4) and (5), but they are not engaged here. There is nothing in the language used that restricts an application to vary or remove a condition to “minor material amendments”, or to what a decision-maker considers to be a “non-fundamental variation”. I accept that the absence of such a limitation on the face of the statute does not automatically mean that such limitations cannot arise as a matter of statutory interpretation, in accordance with well-established principles requiring one to consider the meaning of a statute and its statutory purpose. However it is an important starting point that, on the face of the statute, provided the application is limited to non-compliance with a condition (rather than any other part of the permission) it falls within the stated scope of s.73 of the TCPA 1990.

Second, as now properly understood in light of Finney, the requirement that a s.73 application be confined to applications for non-compliance with a condition is significantly restrictive in and of itself. There is no obvious need, justification or statutory purpose for reading in additional restrictions which are not expressed on the face of the statute. Finney confirms that section 73 cannot be used to vary the operative part of a planning permission. It is a section concerned with non-compliance with condition, rather than the operative part of a permission. One therefore cannot use s.73 to vary or impose a condition where the resulting condition would be inherently inconsistent with the operative part of the planning permission; that would also involve effective variation of the operative part of the planning permission as well. That point was exposed clearly in Finney where the resulting varied condition caused the Inspector to omit the conflicting words in the description of development in her decision. The power under s.73 is therefore a limited one (as briefly observed in Hillside). But in such circumstances, it is difficult to see why it is necessary to introduce or read in further limits on its scope which are not otherwise expressed in the section itself. If, as accepted to be the case here, an application for non-compliance with a condition does not lead to any conflict or inconsistency with the operative part of the permission, it is difficult to see why it is objectionable in light of the statutory purpose of section 73 and the TCPA 1990 itself.

Third, section 73 is clearly intended to be a provision which enables a developer to make a section 73 application to remove or vary a condition, provided of course that the application does not conflict with the operative part of the planning permission. Any such variation application will be subject to the necessary procedural requirements for its consideration which, for example, enable representations to be received. If Parliament had intended the power to restrict its application further (for example to limit it to “minor material” amendments to a condition, or non-fundamental variations to a condition) one would have expected that to be expressed in the language used and it could readily have done so.

Fourth, and linked to the preceding point, the wording of section 96A of the 1990 Act is informative as part of the statutory context. Unlike section 73 which limits its application to conditions, section 96A was introduced as a power to amend a planning permission generally (including the operative part of the permission). But in introducing that power that is applicable to any part of a permission, Parliament expressly constrained its scope to “non-material amendments”. By contrast, no such limitation has been imposed on the scope of s.73 where it is applicable, but with the fundamental difference that s.73 is confined in scope to applications for non-compliance with conditions (rather than non-compliance with the operative part of a permission). From the perspective of statutory interpretation taking account of the statutory context, this is yet a further indication that if Parliament had wished to limit the power under s.73 to “minor material amendments” or so prevent “fundamental variations” to conditions, it would have done so expressly.

Fifth, the effect of giving the words used in s.73 their plain and ordinary meaning so as to allow an application to be made for non-compliance with any planning condition which is not in conflict with the operative part of permission does not, of course, dictate the outcome of that application. It simply means that the application can be entertained. Any such application would then fall to be determined on its planning merits. In this case, for example, the Inspector considered there to be a fundamental difference in the proposed aesthetics of the design shown in the drawings identified in Condition 10 and the proposed plans. That may well be the inevitable result of an application made under s.73. But provided there is no inherent conflict or inconsistency with the “operative part” of the planning permission – in this case the construction of a single dwelling – the planning merits of that proposed change can be assessed on its merits. No such assessment has occurred. As part of that assessment, the decision-maker will be able to consider whether the proposed change (fundamental or otherwise) is acceptable or not in planning terms, taking account of any representations received.

In this respect, I recognise that in Finney, arguments as to the ability to consider the merits of s.73 application in this way (with attendant publicity) was not seen as a factor justifying giving s.73 the more expanded interpretation that the developer and Welsh Ministers had advocated in that case. There is an important difference. There, such arguments were advanced to try and justify giving s.73 a more extended interpretation than its words supported so as to permit effective changes to the operative part of a planning permission. Here, the situation is reversed. The ability to consider the merits of any change to a condition that falls within the ordinary and natural scope of the language used in s.73 points away from the need to read in additional restrictions to the scope of the statutory provision.

Sixth, I do not consider that any of the caselaw materially supports the Defendant’s attempt to restricting the scope of s.73 to “minor material amendments” or non-fundamental variations where there is no conflict with the operative part of the permission. To the contrary, it is more consistent with giving the words of s.73 their plain and ordinary meaning.

….

Seventh, if I am wrong and section 73 is implicitly qualified so as to preclude applications which do not involve any conflict with the operative part of a permission, but do involve what the decision maker considered to be a fundamental variation, I am not convinced that the Inspector has properly addressed the question of what would constitute a fundamental variation in this context.

…

Eighth, even if a test of fundamental variation is a lawful one to apply, I am not persuaded that the Inspector applied such a test in this case. In my judgment there is more than sufficient doubt about that to justify quashing the decision on the basis that he misdirected himself by reference to the PPG and its concept of “minor material amendments”.”

The inspector’s decision letter was quashed and the appeal will now be redetermined. Stick with it, Mr Armstrong. 

NB For further background on the procedures available for amending schemes, see my 14 January 2023 blog post Greater Flexibility For Planning Permissions (Now I’m Just Showing My Age).

Simon Ricketts, 28 January 2023

Personal views, et cetera

Greater Flexibility For Planning Permissions (Now I’m Just Showing My Age)

Such a lot of hyperbolic talk and not enough doing.

The Conservatives’ Open Source Planning 2009 manifesto document started with this passage:

“The planning system is vital for a strong economy, for an attractive and sustainable environment, and for a successful economy. At present, the planning system in England achieves none of these goals. It is broken”.

And then Boris Johnson in the foreword to Planning for the Future (August 2020):

“…we approach the second decade of the 21st century [the incredible potential of this country] is being artificially constrained by a relic from the middle of the 20th – our outdated and ineffective planning system.”

Well fix it, dear Henry, dear Henry, as the old song went. But, of course, it wasn’t broken in 2009 and it – just about – wasn’t outdated or ineffective in 2020. In 2023? I’m not so sure.

Given that the Government is currently refusing to accept there is an NHS crisis, I wonder if it would still accept that there is a housing crisis? Is it concerned by the number of local authorities deciding to pause or abandon preparation of their local plans? I’m genuinely unsure.

But let’s ignore for the moment the political direction in which this old vehicle should be headed and look instead at how the engine is working – can it actually deliver us to wherever it is we want to go?

Instead, let’s just focus on development management for a moment. In what should be a straightforward matter of processing, in accordance with statutory timescales, planning applications so as hold firm against the unacceptable and to approve the rest without delay , in form that that can lead to development taking place, and the public benefits which flow from that, there are currently at least two really horrible feedback loops, or vicious circles, that are holding back even the best projects:

  • Under-resourced planning departments, precautionary in nature, burdened with being the custodians of so many different policy objectives (climate change, health, building safety, beauty, air quality – you name it), take increasingly longer to process applications and their members’ decision-making is increasingly unpredictable (heads turned by lobby groups and hints from Government as to changing approaches). This leads to more applicants deciding to appeal so as to achieve a certain timescale and objective consideration of the issues. This places more work on officers, slowing down consideration of other applications. Which then also end up at appeal. And the slower the application and appeal process, the more likely that new issues arise, sending the applicant back to an earlier stage in the process again.
  • The demands on an applicant to tie down elements of a project at too early a stage, together with short implementation timescales and uncertain processes for processing scheme changes, lead to much unnecessary activity both in (a) keeping planning permissions alive with relatively minor works so that a permission that has taken years and a huge amount of money to achieve is not prematurely lost before the development is in a position to proceed and in (b) using clunky work-arounds – various combinations of section 96A, section 73 and/or drop-in applications – in order to refine proposals so that the permission is for a development which can actually be built. The longer the process for securing planning permission in the first place, the more likely that the resultant planning permission will need to be varied. The more certainty that the authority seeks to achieve with tightly drawn development parameters and a long list of planning conditions, the more likely that changes will be required.

I suspect that the Government is unaware of the true extent of the issue. I was looking at the latest statistics from December 2022. 86% of major applications last year were apparently determined “within 13 weeks or agreed time limit”. “or agreed time limit” is the clue, with time extensions routinely agreed so as to safeguard against premature refusal. Can anyone find where in the tables one might find how long an application for planning permission takes on average, from submission (usually after a lengthy and expensive pre-app process) to completion of section 106 agreement?

Another awkward reality to introduce at this point: projects need to be viable in order to proceed. Private sector development will not take place unless, broadly speaking, (1) the land owner will be paid by the developer an amount sufficiently above existing use value to make it make it worth his or her while to sell, and above what the land may be worth for any other development which could be carried out on the land (2) the developer can achieve a profit which makes undertaking the development commercially worthwhile, having regard to the financial risks inherent in the project, and can be sufficiently confident that there will be a market for the end product and (3) the capital deployed can achieve a better return than if it were to be deployed elsewhere. At present, with construction cost inflation, increased political risks, uncertainties as to the economy, is it any wonder when development is stalled; when development projects which may previously have been viable no longer make any financial sense on the terms negotiated, or when scheme changes are needed to reflect changing commercial (or indeed Building Regulations) requirements? I focus on private sector development given how reliant as a country we are on the private sector to deliver housing in particular, but of course most of the same economic realities apply, or should apply, to development carried out by the public sector.

None of this appears to be recognised in current Government announcements. Far from it. Instead, the rhetoric is to double down on developers who do not build out quickly, in genuflection to the myth of land-banking – with the Levelling-up and Regeneration Bill’s provisions about development commencement notices, changes to the completion notices regime and even a power for local planning authorities to decline to determine applications in cases of earlier implementation. As if these measures were ever going to force a developer to build out a permission for a scheme where the funding wasn’t yet in place, where there was not yet a ready market or where the project was no longer viable! Instead, these measures will simply discourage many from entering the process in the first place, rather than risk abortive expenditure, even if the odds are that the scheme will go ahead. Why take the additional risk?

To people like me, the 2007 – 2008 global financial crisis seems like yesterday. Development almost came to a halt. Whilst it seemed too slow at the time, the then Government responded with measures that were summarised in its guidance document, Greater Flexibility For Planning Permissions, published first in 23 November 2009 and revised  1 October 2010). Look at the 2009 impact assessment:

“In current economic circumstances, there is a reduced take-up of existing permissions. Where permissions lapse, there are costs and delays associated with providing and processing an application for a fresh planning permission.

There is also a broader need for added flexibility to allow developers and local planning authorities to make non-material amendments to existing planning permissions and to clarify and streamline the process for making minor material amendments. There is currently a lack of clarity about what can be done, which is resulting in unnecessary expense and time for both parties.”

The guidance:

  • set out the temporary arrangements that had been brought in to extend the life of planning permissions. “This measure has been introduced in order to make it easier for developers and local planning authorities to keep planning permissions alive for longer during the economic downturn so that they can more quickly be implemented when economic conditions improve.”
  • explained about the then new section 96A process for non-material amendments to planning permissions, introduced on 1 October 2009 pursuant to the Planning Act 2008.

The guidance was withdrawn on 7 March 2014 and replaced with the Flexible options for planning permissions section of what was then the new Planning Practice Guidance. In the transition, somehow the policy thrust of the earlier guidance was lost – the notion that flexibility can be a good or even necessary thing.

If you recall, the coalition Government subsequently introduced by way of the Growth and Infrastructure Act 2013 new sections 106BA, BB and BC into the Town and Country Planning Act 1990, providing a new application and appeal procedure, to review affordable housing obligations on the grounds of viability. Whilst helpful in some situations, it was certainly abused in others, and it was then repealed in 2016.

More recently of course, during the pandemic there were temporary measures to allow for the extension of time limits on planning permissions.

The Levelling-up and Regeneration Bill has its second reading in the House of Lords on 17 January 2023 and, when it comes to greater flexibility for planning permissions, clause 102 (introducing new Section 73B into the Town and Country Planning Act) remains as a small step in the right direction. Section 73 will continue to exist but section 73B provides for an alternative procedure for amending schemes, given that as a result of the Court of Appeal’s ruling in Finney, section 73 cannot be used for amending the description of development on a planning permission. Section 73B will allow for an application to be made for planning permission to be granted for an amended form of a previous planning permission. Planning permission will only be able to be granted “if the local planning authority is satisfied that its effect will not be substantially different from that of the existing permission”. It will not be able to be applied for in relation to a section 73 permission. The local planning authority “must limit its consideration to those respects in which the permission would, if granted…differ in effect from…the existing permission”.

My worry with section 73B is that unless there is really encouraging guidance from DLUHC, local planning authorities will be cautious as to the “not substantially different” test. After all, where does it rest on the spectrum between “non-material amendment” and “fundamental alteration”?

It seems to be that we will now have the following procedural options:

  • Section 96A for non-material amendments
  • Section 73 for amendments which may be material but which are not a fundamental alteration to the approved scheme and which do not necessitate a change to the description of development on the face of the original planning permission.
  • Section 73B for amendments which do not approve development whose effect will be substantially different from that of the existing planning permission
  • A fresh application for planning permission (encompassing also the Supreme Court’s suggested solution given in paragraph 74 of  its Hillside judgment: “Despite the limited power to amend an existing planning permission, there is no reason why an approved development scheme cannot be modified by an appropriately framed additional planning permission which covers the whole site and includes the necessary modifications”)
  • In a case where the existing planning permission is, in the words of the Supreme Court in Hillside, “severable”, our old friend the “drop-in permission”. Unmentioned in Hillside, not to be found in legislation or guidance but still in my view clearly possible in the right situation.

Wouldn’t it be useful for DLUHC to publish a document now with the can-do tone of Greater Flexibility for Planning Permissions, recognising the obstacles in the way of achieving timely development, and encouraging local planning authorities to use these procedural tools available to them where necessary, so as not to delay or frustrate development, with suggestions as to how the appropriate tests should be approached? At present the whole thing is a lottery, dependent on the particular views of individual planning departments and even individual officers.

And wouldn’t it be useful if, instead of the hyperbole, there could be an honest look at the real stresses and strains the current system is under and if there could be a tightening of processes in the same way as Rosewell achieved for the planning appeals system? And above all, if planning departments could have available to them sufficient staff: well-trained, well-managed and well-motivated?

And now the prospect of strikes at the Planning Inspectorate. An interesting year ahead, folks.

Simon Ricketts, 14 January 2023

Personal views, et cetera