Clarity on the scope of s.73 applications

The High Court judgment in Armstrong v SoS (1) Cornwall Council (2) [2023] EWHC 142 (KB) relating to the scope of s73 applications was handed down last Friday, 27 January 2023. This decision succinctly sets out why an Inspector’s decision that a variation to the design of a dwelling house did not fall within the scope of s73 was unlawful. The key points arising are: 

• The starting point is the wording of the statute where there is no reference to minor material amendments or amendments which do not involve a substantial or fundamental variation. The statutory scope (without interpretation) is an application "for planning permission for development of land without complying with conditions subject to which a previous planning permission was granted;”
• Finney confirms that s73 cannot be used to vary the operative part of a planning permission so a s73 cannot be used where the resulting condition would be inconsistent with the description of development;
• If Parliament had intended to restrict the application of s73, for example to minor material amendments, one would have expected that to be expressed in the language used. s96A was introduced as a power to amend a planning permission generally including the operative part of the permission and Parliament expressly constrained its scope to “non-material amendments”. By contrast, no such limitation was imposed on the scope of s73;
• The effect of giving the words used in s73 their plain and ordinary meaning, 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 dictate the outcome of that application. It means that the application and proposed change (fundamental or not) falls to be determined on its planning merits, taking into account any representations received;
• None of the case law supports restricting the scope of s73 applications to minor material amendments or non-fundamental variations where there is no conflict with the operative part of the permission; it is more consistent with giving the words their plain and ordinary meaning.

This judgment comes at a time when many are considering how to consent variations to schemes in light of the Hillside Supreme Court judgment and is helpful in the context of clarifying that s73 is not limited to minor material or non-fundamental amendments.  It should however be treated with an element of caution at present as it may still be challenged.

If you would like to discuss the implications of this judgment or Hillside, please do let us know.