Building leeway
Efforts to broaden section 73’s remit on planning rumble on, says Rupert Wilson
Consider the following scenario: you obtain planning permission for a scheme, on condition that the development is carried out in accordance with the approved plans. Once onsite, you realise you must amend the floor layouts to enable the scheme to be built. How can you avoid starting a new planning application?
Section 73 of the Town and Country Planning Act 1990 allows developers to apply to vary one or more conditions attached to a planning permission. If successful, a new permission is granted. Section 73 can only be used to vary a condition, not to obtain a permission that is fundamentally different to the original permission. It cannot be used to vary a condition which limits the time within which the development must begin.
But, as well as varying existing conditions, the local planning authority can impose new planning conditions and requirements in a new section 106 agreement. These new demands may be more onerous than the original ones.
Recently the government consulted on extending the use of section 73 applications beyond varying conditions to include ‘minor material amendments’ (amendments whose ‘scale and nature results in a development which is not substantially different from the one which has been approved’).
Due to lack of parliamentary time, government guidance published in November recommends section 73 applications continue to be confined to varying conditions. Therefore to enable the use of section 73, the local planning authority should always impose a condition.
Rupert Wilson is an associate in Lewis Silkin’s social housing department
rupert.wilson@lewissilkin.com
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