There is often a need to amend a planning permission; but there is also often significant difficulty in doing so.

As many reading will be aware, the TCPA 1990 provides two main options: non-material amendments under section 96A; or amending conditions under section 73. The result of a successful section 73 application is a new permission.

However, there are limits on what section 73 can do. Following cases like R (Finney) v Welsh Ministers [2019] EWCA Civ 1868, you can’t use section 73 if that would result in a permission where the conditions are fundamentally inconsistent with the description of development.

But is that the only restriction? An important question that has been the subject of two conflicting answers from the High Court in the last year is whether there is a second limitation, namely that section 73 cannot be used if the result would be a permission that is “substantially different” or more than a “minor material amendment” to what was originally granted.

First, in R (Armstrong) v SoS [2023] EWHC 176 (Admin), Mr Armstrong wanted to change the design of his consented house from an irregular shaped modernist dwelling to a dual-pitched alpine lodge. The Council and Inspector refused to grant a section 73 application to amend the condition listing the drawings, on the basis that the revised design would result in something substantially different to that permitted, which was said to be impermissible under section 73.

The High Court disagreed, holding that section 73 is not restricted to minor material amendments or non-fundamental variations. The Judge gave a number of reasons:

  1. The words of section 73 itself do not contain any such restriction (§74);
  2. That stands in contrast to section 96A, which is expressly restricted to non-material amendments (§77);
  3. If Parliament had wanted to restrict section 73, it would have done so explicitly (§76);
  4. Section 73 applications still require consultation and assessment of the planning merits (§76);
  5. As conditions should only be imposed when necessary, changes to most conditions could be seen as “fundamental” to the permission (§87);
  6. The case law did not support the restrictive approach (§80).

The High Court also held that the wording of the then-extant version of the PPG on Flexible Options for Planning Permission had introduced an “impermissible gloss” on section 73 TCPA and was “liable to confuse”.

The Government took heed of the advice and updated the PPG in July 2023, removing §017 and introducing a new §013, which now states that section 73 “can be used to make a material amendment” and that there is “no statutory limit on the degree of change permissible to conditions under s73”.

It appeared that the law had been settled. However, towards the end of last year, we had a further development.

In R (Fiske) v Test Valley BC [2023] EWHC 2221 (Admin), Mrs Fiske sought an order quashing the grant of a section 73 permission “varying” the conditions in respect of a permission granted in 2017 for the development of a solar farm, substation, and infrastructure. Mrs Fiske contended that the section 73 permission was unlawful because it removed the substation from the plans, which resulted in a conflict with the operative wording of the original permission and/or fundamentally altered the development permitted.

The Court held that the new plans did result in a condition inconsistent with the operative wording of the original permission. Therefore, the permission was outside the power conferred by section 73, applying Finney, and the decision was unlawful (§130).

However, the Court also looked again at whether there is a second, wider restriction on section 73, i.e. that it cannot result in a fundamental alteration. This time, the Court held that the case law does suggest there is such a restriction, referring to Finney and to R (Arrowcroft) v Coventry City Council [2001] PLCR 7.

Moreover, despite what was said in Armstrong earlier that year and despite the change to the PPG, in Fiske the parties had both agreed before the Court that section 73 was limited to cases where it results in no fundamental alteration.

The lesson? For now, proceed with caution in your expectations about the limits of section 73 applications, as this appears an area that may be ripe for further litigation.

Is there clarity on the (distant) horizon? Section 110 of LURA 2023 has created the legislative power to introduce a new section 73B into the 1990 Act: “Applications for permission not substantially different from existing permission”.  The obvious question: what does “not substantially different” mean? It may not matter. Section 73B is not yet in force, and the small matter of the election may yet determine whether it ever will be.