For some years now, the Section 73 application has been the go-to process for regularising amendments to consented planning schemes. Amendments are required for many reasons following the issue of a detailed planning consent, client changes (including a new landowner seeking to amend the consent), cost saving measures, changes to the building regulations, issues with site conditions that were previously unknown or simply housetype substitutions.
The benefit of section 73 is that in considering the application, the LPA do not review the principle of the consent, no additional or updated reports are required (unless to support the changes proposed) and above all, it’s cheap.
To Architects and Planning Consultants like us, this is a vital tool. Rickett Architects are retained on many schemes, post planning , for delivery phases on significant housing and mixed use projects, and without exception, decisions are made or forced upon the client and design team that requires the planning consent to be amended.
Then this happened, Hillside v The Snowdonia National Park Authority – (follow the link for the full decision)
In essence, this Supreme Court Judgement concludes that amendments that could be considered a departure that renders compliance with the original consent physically impossible, should not be considered under a section 73, rather by a ‘an appropriately framed additional planning permission’
As an aside, we frame all our planning consents, alongside tributes to fallen comrades who gave their sanity in the pursuit of a permission.
So now the highest court in the land has handed down a decision that supports LPA’s refusing to accept Section 73 applications, by declaring the most minor of amendments to be detrimental to the compliance with the original consent.
This is a matter of fact and degree, but you cannot negotiate when one party has unilateral sanction to make the decision, i.e. refusal to register a planning application cannot be appealed.
So will this mean that full planning applications will have to be made for amendments, full suite of reports prepared, review under the latest guidance of biodiversity, nutrient neutrality, canopy coverage, renegotiated section 106 etc. that could further reduce scheme viability?
We hope not, the Government is considering this within the Levelling up and Regeneration Bill, proposing a Section 73B which will allow Local Authorities to grant new permission that is substantially the same as existing permission, while only having to consider the variations between the consents.
The above was written in November 2022, although never posted on our Knowledge Hub, it can now be updated following the Levelling Up and Regeneration Bill passing into Law, and a further High Court decision regarding how section 73 applications can be used.
So the news is not good for the development industry, planning fees will increase by 35% for major applications from 6th December 2023. The funds raised will not be ringfenced to invest in the planning system or staffing planning departments with adequately trained officers, or more importantly, devolving some sort of knowledge understanding of the process and their role within in to planning committee members.
Further, the ability to submit a ‘free go’ application following a planning decision or withdrawal has been removed. On the face of it , the reasoning behind this move is logical, encourage the use of the preapplication advice process rather than full plans submission, accumulate the consultation responses and consider whether a withdrawal and resubmission is in the best interests of the applicant.
Here’s the problem. The preapplication advice process is a wasteland of ineptitude, rampant variations of fee structure, incompetence, and lack of consultation. Moreover, the service attracts a fee set by the LPA, yet carries no liability or responsibility to acknowledge or respect the advice given at pre app when a full application comes forward.
There can only really be one clear consequence of the steep rise in planning fee, loss of the free go option and dangerous rumblings about the extent of the use of Section 73 applications….. Planning appeals are still free of a statutory fee.
We will also be advising clients to keep one eye on the planning guarantee, should an application not receive a decision within 26 weeks (major app) and no formal extension of time being agreed, the planning fee is refundable. For minor application this is reduced to 16 weeks. The successful application of this legislation is key, it’s the only way to hold an authority to account for non-performance.
Returning to the use of Section 73 applications, the High Court decision of Armstrong v Secretary of State for Levelling-up, Housing and Communities & Anor  EWHC 176 (Admin). Offers more clarity regarding the use of Section 73, in summary, it can be used to consider a suite of changes to an application providing that they do not conflict with the ‘operative part’ of the planning permission, that being the description and quantum of development as a starting point.
Always like to end a rant with some positive news…….