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A new option for varying planning permissions

Over the last couple of years, there has been an influx of case law regarding the scope of section 73 applications. In light of this, the Levelling up and Regeneration Act 2023 (LURA) provides an alternate route to vary a planning permission.

Background

Currently, the Town and Country Planning Act 1990 (TCPA) permits two methods of varying a planning permission:

  • non-material amendments under section 96A TCPA; and
  • variations to conditions under section 73 TCPA which (unlike a section 96A) result in a fresh planning permission. A developer may then choose to implement the original permission or the new section 73 permission.

It is well established in case law that a section 73 application cannot be used to vary the description of development or a condition which would then be inconsistent with the operative part of the planning permission (Finney [1]).

This position is now reflected in national Planning Practice Guidance which states that there ‘is no statutory limit on the degree of change permissible to conditions under s73, but the change must only relate to conditions and not to the operative part of the permission’.

Levelling up and Regeneration Act 2023 (LURA)

The LURA has introduced a third option for varying planning permissions. Section 73B allows for changes provided that they will not be ‘substantially different’ from the existing permission.

For this purpose, the existing permission will be the original permission granted rather than any subsequent section 73 permissions.

Section 73B reflects some of the statutory restrictions found in section 73 – i.e. it can’t be used to vary the time by which development must commence or the time by which an application for approval of reserved matters must be made.

Section 73B(7) limits an authority to reviewing those aspects that would differ from the existing permission – in this way section 73B is an attempt to get around the issues of Finney by allowing an authority to consider both the conditions and the description of development. However, section 73B may not help in all circumstances as it will only apply where the effect of the changes are the “same or substantially the same” as the original permission.

Section 73B is not yet in force and further secondary legislation will be required. We expect the effect and scope of the new section 73B to be vigorously tested in the planning courts.


[1] Finney v Welsh Ministers & Ors [2019] EWCA Civ 1868

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