A recent High Court ruling has changed the effectiveness of S73 applications going forward.
Where a planning permission includes either the number of residential units or quantum of floorspace for a particular use in the description of development and a developer wishes to amend that development as described in the permission it is no longer lawful to secure those changes through a Section 73 application alone.
If the changes proposed do not affect the description of development, and changes are required only to the attached conditions then Section 73 may still be used.
The ruling found applicants could only focus on modifying the conditions of previous permissions through s73 applications if they were minor material changes - instead of major material changes – rather than the description of development.
Fundamental changes in a scheme will now potentially require an entirely new planning application rather than a Section 73 application.
This will curb the ability of developers to use Section 73 applications and get new permissions for vastly different development schemes with different unit numbers / floorspace levels. Undoubtedly, the decision will have substantial impacts on larger and complex development schemes.
Attention is still drawn to the ability to make minor material changes if the original description of development isn’t affected.
Going forward this means it is essential that the initial description of development is as flexible and open as possible to be able to accommodate future potential changes. For example, don’t include unit numbers of floorspace in the description as you will potentially be tied to it.
Instead, specifics should be controlled via planning conditions or Section 106 obligations to enable S73 to be used to change those details later.
The lesson is....be careful what you apply for!
Contact CODA Planning at firstname.lastname@example.org for more information and advice.