The Court of Appeal has ruled that it is no longer lawful for local planning authorities (LPAs) to use S73 powers to amend the description of development on a planning permission. Under Section 73 LPAs may now only amend, remove or add conditions attached to that permission.
Where a planning permission fixes (in the description of development) either the number of residential units or quantum of floorspace for a particular use (or indeed any other particular aspect of a development) and a developer wishes to optimise or change that development as described in the permission it is no longer lawful to secure those changes through a Section 73 application alone.
If the changes proposed do not affect the description of development, and changes are required only to the attached conditions then Section 73 may still be used.
WAY ROUND THE RULING FOR EXISTING PERMISSIONS
Where a developer seeks changes to an existing permission under Section 73 which would require an amendment to the description of development we advise that a request is also made to the LPA to change that description using its Section 96A powers. However, this route comes with a health warning:-
- the LPA must agree that the change to the description is non material. And it may not agree. For example, because it considers that there would be CIL implications or where it affects a Section 106 deed (although a variation to a Section 106 deed is possible, with agreement, but consequently Section 96A applications may take significantly longer than 28 days to determine, if the decision is subject to completion of that deed);
- if the LPA considers the change is material and declines to proceed with the Section 96A then Section 73 cannot be used to change the development and a wholly new application would be required (with consequent time and cost implications and the possibility of a new or more onerous planning policy landscape); and
- there is no right of appeal against the LPA’s refusal of a Section 96A application
WAY FORWARD FOR NEW PLANNING PERMISSIONS
For developers and land promoters putting together new developments, careful thought must be given to the structure of the planning permission. We suggest (so as to preserve the utility of Section 73 for future optimisations) that the description of development does not fix unit numbers or floorspace. Instead this should be controlled via planning conditions or Section 106 obligations to enable Section 73 to be used to change those details at a later date.
This approach will, however, require discussion and agreement with the LPA (which may not be forthcoming) and also requires proper consideration of any EIA implications in terms of ensuring the parameters for assessment are clearly identified so as to minimise the risk of judicial review.
Karen Cooksley gives an overview of the important function Section 73 has performed in schemes in the past and how its curtailing could affect housing delivery and the industry more broadly in a podcast with EG