Court of Appeal makes it harder to vary planning permissions says Karen Cooksley and Colette McCormack at Winckworth Sherwood.
Since the introduction of environmental impact assessments in 1999 it has been common practise (and a requirement for some local planning authorities) to ensure that the description of development on the planning permission contained the maximum number of uses and units.
Any change to the development that affected these uses could be amended by a Section 73 powers in the Town and Country Planning Act application. This process allowed changes to be made to a scheme as long as those changes did not result in the scale or nature of the development being substantially different from the one previously approved. It is commonly referred to as an application to vary a condition on the extant planning permission but in law creates a new permission.
This approach created flexibility to allow the development to respond to changes going forward and was particular useful on large scale multi-phased development where the planning permission allows a build out over a number of years.
A Court of Appeal decision handed down in November 2019 has now made it no longer lawful to allow S73 applications to amend the description of development. When a planning permission fixes in the description of the development the number of units or total floor space it is now no longer lawful to secure amendments via Section 73 powers, leaving developers tied to the permissions that are already in place.
The Court of Appeal decision has caught local authorities and social housing providers by surprise, creating problems on sites with existing permissions and requiring new thinking on new planning permissions.
Social housing providers and developers wishing to make changes to a description of a development in an existing permission should now consider making a request to the relevant local planning authority using Section 96 powers, which allow for non-material changes to permission. The Court of Appeal judgment makes express provision for this.
But there is a word of caution. The decision as to what is material lies with the local planning authority and there is no right of appeal against a local planning authority’s refusal of a Section 96 application. It may decide that the proposed change is material if they have an impact on CIL — an s96A decision is not a planning permission in terms of the CIL regime and so the collecting authority will not be able to secure any uplift.
S96a applications were meant to be swift and if there were no changes to obligations then, unlike S73 applications, no linking deed of variation was required. Where a variation to a Section 106 deed is required, Section 96 applications may take significantly longer to determine.
If the local planning authority considers the change to be material and declines to proceed with a Section 96 application, a wholly new application is likely to be required, with the consent times, additional cost, and the possibility of a new or more onerous planning policy landscape.
A way forward for new planning permissions
Social housing providers, developers and local authorities need now to give careful thought to the structure of the description of development on a planning permission.
We recommend that to preserve the use of Section 73 powers the description of the development in a planning application does not fix the number of units or total floor space. Instead, this should be controlled via planning conditions (the Section 106 agreement can still refer to these maximum numbers and may need to do so for viability reviews), thus enabling Section 73 to be used to change details at a later date to respond to market conditions and delivery.
This approach will, however, require discussion and agreement with the local planning authority, which may not always be forthcoming. It will also require proper consideration of any Environmental Impact Assessment implications to ensure the parameters for assessment are clearly identified so as to minimise the risk of judicial review. This Court of Appeal decision has made an already complex planning landscape just that little more so.