The High Court has recently ruled in the case of Armstrong v Secretary of State for Levelling-Up, Housing and Communities & Anor [2023] EWHC 142 (KB) that a planning inspector was wrong to decide that an application to completely change the design of a new house should be refused because it did not fall within the scope of section 73 of the Town and Country Planning Act 1990 (Section 73).
Section 73 is a means by which an application can be made to the local planning authority to amend conditions attached to a planning permission. Section 73 applications are commonly referred to as applications for “minor material amendment”.
The case involved a site in Cornwall that had been granted full planning permission for the “construction of one dwelling”. One of the conditions attached to the planning permission required the development to be carried out in accordance with approved drawings. The claimant made a Section 73 application to Cornwall Council (Council) to vary this condition by substituting new drawings. These new drawings would completely change the form and style of the proposed house.
The Council and the planning inspector refused the application on the basis that the claimant’s application was beyond the scope of Section 73, arguing that the change would result in the development being materially and substantially different from what had originally been approved and was therefore not a “minor material amendment”. In making their decision, the Council and the planning inspector referred to the Government’s online Planning Practice Guidance (PPG).
The High Court pointed out that the concept of minor material amendments was introduced by the PPG, but that it does not appear in the planning legislation. Accordingly, Section 73 was not limited in this way and the planning inspector had misdirected himself in making his decision by reference to this PPG concept. The High Court did recognise that the PPG was liable to confuse readers who, as the planning inspector had done, may infer that only minor material amendments to planning conditions fell within Section 73.
The High Court also highlighted the distinction between the “operative part” of a planning permission (where the permitted development is described) and the planning conditions that are attached to that approved development, confirming that Section 73 does not capture variations that affect the operative part.
In this case, in whichever form or style the house was constructed, if that house remained the only dwelling on site, there would be no change to the “basic principle” of the approved development. Mr Armstrong’s application to substitute plans therefore fell within the scope of Section 73 and should have been “entertained and determined”.
The High Court did indicate that if the description of the approved development had been more prescriptive in the underlying planning permission, for example, permitting the “construction of a single bungalow”, then the outcome may have been different. In this instance, it was clear to the High Court that there would have been no inconsistency with the operative part of the planning permission.
Please note that this information is provided for general knowledge only and therefore specific advice should be sought for individual cases.
For further information, please contact Rubilee Stockley
