Legal Viewpoint: Putting ‘minor material amendments’ to bed

Hot on the heels of the recent Hillside decision (Hillside Parks Ltd v Snowdonia National Park Authority), the courts have again turned their attention to means of making changes to planning permissions and, in particular, the scope of the power in section 73 of the 1990 Town and Country Planning Act.

Section 73 allows local planning authorities (LPAs) to grant planning permission for the development of land without complying with conditions subject to which a previous permission was granted. It limits the LPA's consideration to the question of conditions subject to which permission should be granted. The government's Planning Practice Guidance (PPG) contains commentary on section 73 which (amongst other things) states that one of the uses of a Section 73 application is to seek to make "minor material amendments".

In the case before the High Court, planning permission was granted for the construction of one dwelling on a site in Cornwall. Attached to the permission was a condition requiring the development to be carried out in accordance with the approved drawings. The claimant applied under section 73 to vary those approved drawings to change the design of the dwelling. The LPA refused his application.

On appeal, the inspector decided the main issue was whether the proposal was a "minor material amendment". He dismissed the appeal, concluding the changes amounted to a "fundamental variation" going "beyond the parameters of a minor material amendment" and outside the scope of section 73.

The claimant challenged the inspector's decision. The issue for the High Court was whether the inspector lawfully rejected the section 73 application as a "fundamental variation" of the permission, even though it would not conflict with the description of development permitted. In quashing the inspector's decision, the judge provided a helpful reminder of the scope of the power in section 73 and struck a blow to the problematic concept of the "minor material amendment".

The judge observed that nothing in the wording of section 73 limits its application to "minor material amendments" nor to amendments that do not involve a "substantial" or "fundamental" variation. There is no "need, justification or statutory purpose" to "read in" additional restrictions (such as those in the PPG), the court ruled. Had parliament intended to restrict further the application of section 73, one would expect that to be expressed in the language used (such as in section 96A which may be used only for non-material amendments).

The power in section 73 is limited in its scope to non-compliance with a condition. As the Court of Appeal confirmed in the 2019 case of Finney v Welsh Ministers, section 73 cannot be used to vary or impose a condition where the resulting condition would be inconsistent with the operative part of the planning permission. The judge held that, provided an application for non-compliance with a condition does not lead to inconsistency with the operative part of the permission, it is difficult to see why an application under section 73 could not be made. Giving the words in section 73 their ordinary meaning did not dictate the outcome of an application – it would be determined on its planning merits.

The judge found no case law to support the defendant's argument that section 73 was limited in scope to "minor material amendments". Indeed, the case law is consistent with giving the words of section 73 their ordinary meaning. In the present case, the operative part of the permission allowed the construction of a single dwelling on the site. The proposed revisions to the style of the dwelling were different in nature to that originally granted consent, but they did not conflict with the original consent. The application still proposed the construction of a single dwelling on the site.

The judge concluded that the PPG introduces a concept of "minor material amendment" where no such expression exists in section 73 itself, nor in the leading cases. This leads to an "impermissible gloss" on the scope of section 73 which "has the propensity to misdirect the reader" as it misdirected the inspector here. Practitioners will be watching keenly to see whether this important and welcome observation is reflected in future revisions to the wording of the PPG.

Armstrong v Secretary of State for Levelling-up, Housing and Communities & Anor [2023] EWHC 176 (Admin)

David Wood is a senior associate at law firm Hogan Lovells International LLP

This article first appeared in Planning Magazine (24 February 2023)

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