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Where a successful section 73 application has been made to the Local Planning Authority, resulting in the grant of a new planning permission with varied conditions, is it then possible to make a further variation to that section 73 permission by way of a further application under section 73 of the Town and Country Planning Act 1990?

United Kingdom Publication September 2020

First published by LexisNexis

Section 73 of the Town and Country Planning Act 1990 (TCPA 1990) (so far as relevant) provides as follows:

‘73.—Determination of applications to develop land without compliance with conditions previously attached
(1) This section applies, subject to subsection (4), to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted.
(2) On such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted, and—
(a) if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly, and
(b) if they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application.’

It includes no restriction on the number of times TCPA 1990, s 73 can be used to vary a permission, and there is no case law to this effect.

The short answer to the question is posed is therefore 'yes'; there is in theory no limit on a number of times that a developer can successively vary TCPA 1990, s 73 permissions, in fact it is quite common on large schemes. Hints and tips when taking this approach are as follows; these are of principal relevance where a scheme is under construction:

  • if a developer wants to vary an already varied scheme then in the new TCPA 1990, s 73 application sought it will be necessary to include all the previously approved scheme amendments (being taken forward) so that when the new TCPA 1990, s 73 permission is granted it is a holistic approval for the development that is being built out / proposed to be built out. The revised scheme will need to include all previous TCPA 1990, s 73 amendments as well as any TCPA 1990, s 96A amendments made to the scheme. This makes it much easier for funders and purchasers/lessees undertaking due diligence on the development if they are advised that they only have to look at the last TCPA 1990, s 73 permission, this being the ‘operative permission’ and all previous permissions granted provide context but do not need to be reviewed. Since a later TCPA 1990, s 73 permission is an alternative permission to the original permission, and any earlier TCPA 1990, s 73 permission (each could be built out and the applicant is entitled to implement or ignore any later consent) it can cause unnecessary confusion later if it’s not clear what has been built out pursuant to what consent
  • References: 
    Finney v Welsh Ministers [2019] EWCA Civ 1868
    it is important to be clear in the description of development what permission is being varied. It may well mean a lengthy description of development advising that this is an application to vary condition of permission X which varied permission Y, which varied by Z permission. Again providing clarity in the description makes due diligence undertaken for funding or sale/let that much easier. Providing clarity reduces risk. Adopting this approach should not run counter to the Court of Appeal’s decision in Finney v Welsh Ministers
  • make sure that when permission is granted previously discharged conditions are recorded so if, for example, there was a requirement to submit details for approval and to construct the development in accordance with the details so approved then the new TCPA 1990, s 73 permission should record that the development shall be built out in accordance with the details approved pursuant to discharge of condition consent reference and might also refer to the date and description of the application material thereby approved. The Planning Practice Guidance on the Flexible options for planning permissions at paragraph: 015 (Reference ID: 17a-015-20140306) provides as follows:

‘A decision notice describing the new permission should clearly express that it is made under TCPA 1990, s 73. It should set out all of the conditions imposed on the new permission, and, for the purpose of clarity restate the conditions imposed on earlier permissions that continue to have effect.’

What should be avoided is repeating the conditions slavishly from the original permission or an earlier TCPA 1990, s 73 permission where these have been discharged/part-discharged as it means (technically) that these details need to be discharged again on the new TCPA 1990, s 73 permission. In turn this can cause confusion during due diligence and unnecessary requests for insurance cover/indemnities.

It is common for development to be commenced under one consent and to be completed pursuant to a different consent; providing clarity that the completed development is lawful and carries no risk of being unlawful is particularly important. Pre-commencement conditions may have been discharged years before; if the local planning authority are agreeable seek an informative on the latest TCPA 1990, s 73 consent identifying conditions previously fully discharged.

References:
R. v Coventry City Council Ex p. Arrowcroft Group Plc [2001] PLCR 7, [2000] Lexis Citation 5053

It is also important to remember that the revised scheme for which planning permission is now sought pursuant to TCPA 1990, s 73 is not so different from the original scheme granted permission that it amounts to a fundamental alteration of the proposal put forward in the original application (as per Sullivan J in R. v Coventry City Council Ex p. Arrowcroft Group Plc; the council is able to impose different conditions upon a new planning permission, but only if they are conditions which the council could lawfully have imposed upon the original planning permission.



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