Should planning reforms promote greater flexibility under Section 73?

It’s been a busy start to 2023 for the planning world.

We returned from the Christmas break to an extensive overhaul of the National Planning Policy Framework (who needs housing anyway?), our sixth Housing Minister in 12 months and the award of £2.1bn of Government funding to level up historically overlooked areas. Whilst these alone might be enough to contend with, a series of legal challenges have also come to fruition and produced some rather interesting planning conclusions.

Today I am going to consider the case of Armstrong v Secretary of State for Levelling Up, Housing and Communities & Cornwall Council dated 27 January 2023. In this case, planning permission for a dwelling was approved in 2007 by Cornwall Council and development commenced as such that the permission remained extant. In 2020 the Council granted a non-material amendment for a revised design showing an irregularly shaped, modernist house on the site. A Section 73 application was subsequently submitted to vary the design of the building to a style similar to a house that had previously stood on the plot as a simple, rectilinear alpine lodge style. Permission was refused and at appeal, an Inspector agreed with the Council on the grounds that the scheme represented a redesign of the house and was substantially different in nature from that approved.

If you are not familiar with an application under Section 73 of the Town and Country Planning Act, this Section allows the applicant to seek a minor material amendment providing there is a suitable planning condition to vary or remove. There is no statutory definition of minor material amendment but the scale or nature cannot be materially different from the approved scheme.

In his judgement, Deputy Judge James Strachan KC, concluded that the Inspector had erred in law. In his view, the proposed variation did not change the description of development. In addition, it did not change the nature of the development that had been permitted: which was, the erection of a single dwellinghouse. Furthermore, the Judge set out that national planning guidance on the scope of a Section 73 application was misleading and “has the propensity to misdirect the reader”. There is nothing in Section 73 that limits applications to make fundamental or substantial variations to the scheme but planning guidance reads as to limit Section 73 applications to “minor material amendments”. The judge concluded that in his reading of the planning guidance the Inspector had erred in law as a result. By all accounts, the proposed changes were not minor and consisted of a complete redesign. However, the proposals do not fall outside the scope of a Section 73 application.

The purpose of Section 73 is to allow the developer to vary or remove one or more conditions following the grant of planning through a minor material amendment. In this case, the site had changed hands and the new owner preferred “a simpler, more elegant design” using “modern methods of construction to erect the building more speedily and in a more sustainable manner”.  It is both understandable and at times frustrating that there is no statutory definition of minor material amendment because depending on interpretation, this Section of the Act can, on one hand, provide much needed flexibility or it can take it away. Interpretation of what may constitute a minor material amendment is a subjective matter sometimes differing from one authority or planner to another. Many a planner winced and let out a sigh of relief knowing their Client’s Section 73 application has been accepted – as a Section 73. There is no one size fits all in planning, it really does depend on the merits of each case.

The current overhaul of the NPPF is a perfect opportunity to rectify the interpretation of Section 73 applications in the guidance and furthermore, ensure guidance is clear on the remit of Section 73b as proposed in the Levelling Up Bill. Under Section 73b, it would be possible to change the description of development, unlike in a Section 73 application, and material changes could be permitted providing they did not lead to substantially different effects. Section 73 applications still come under the same scrutiny as other planning applications so any potential changes to the nature, scale, and effects of development can still be managed by the planning authority. With the forthcoming changes to the provision of housing land supply, it is imperative that the system is clear and holds enough flexibility to enable minor material amendments to schemes that can contribute to the 300,000 homes a year needed along with other schemes that support the Levelling Up agenda. Without that, reforms will get us nowhere… except maybe another Housing Minister.

Former Swiss chalet style house at the application site in Portwrinkle, Cornwall Courtesy of Cornwall Council