News | June 22, 2023


The recent case of Armstrong v Secretary of State for Levelling Up, Housing and Communities [2023] EWHC 176 (Admin) has further clarified the scope of section 73 applications, rejecting the notion that they can only be used to secure ‘minor material’ amendments.

Section 73 of the Town and Country Planning Act 1990 (“TCPA“) enables planning applications to be made for development without complying with conditions imposed by a previous permission.  

These ‘section 73 applications’ are often incorrectly referred to as applications to vary an existing permission, whereas they actually result in a whole new planning permission that exists alongside the extant original permission.

Previous case law has clarified that section 73 applications are limited to amending conditions and cannot be used to change the operative part of the permission (i.e. the description). Permitted changes arising from the imposition of different conditions are confined to those that do not amount to a ‘fundamental alteration’ of the scheme authorised by the original permission.

Armstong case – are section 73 applications limited to minor material amendments?

Mr Armstrong had been granted planning permission for the construction of a house on a beach-side plot in south-east Cornwall. A condition had subsequently been added to the permission by way of a non-material amendment under section 96A of the TCPA to list a set of approved drawings, and Mr Armstong then made a Section 73 application to substitute drawings listed in that condition. The effect of the changes was to alter a modernist design to what the Council described as a building of a simple “alpine lodge style”. 

Cornwall Council refused the Section 73 application, Mr Armstong’s appeal against that decision was dismissed by a planning inspector, and he then challenged the inspector’s decision in the High Court.  The judge quashed the inspector’s decision, meaning that the appeal must now be considered again.

The planning inspector had considered that the proposed new design of the house was ‘fundamentally different’ to the existing one and the changes were therefore substantial. He refused to grant permission on the basis that the proposal could not be considered a minor material amendment under section 73 of the TCPA. In quashing the inspector’s decision, the judge affirmed that section 73 applications are not confined to minor material amendments.  

The Judge’s reasoning

The judge made a number of points in reaching his decision, starting with the fact that the words of section 73 make no reference to the variation or removal of conditions being confined to minor material amendments or ‘non-fundamental variations’.  He drew a distinction with the wording of section 96A of the TCPA which explicitly limits amendments under that section to non-material ones. As the operation of section 73 is already limited in scope by the wording of the legislation and cannot be used to vary or impose a condition which would cause inconsistency with the operative part of the permission, the judge decided that there can be no justification for reading additional restrictions into it.

In Mr Armstong’s case the description of the development in the existing permission – “the construction of one dwelling” – was wide enough to allow changes to the design without being inconsistent with that description. This doesn’t mean, of course, that any proposed changes will necessarily be acceptable if they do not conflict with the operative part of the permission and are focussed on changes to conditions – the decision maker must still assess the planning merits of the changes and may conclude that they should not be permitted. 

The planning inspector did not get as far as considering the planning merits in Mr Armstong’s appeal – they will be for the next planning inspector to assess when the appeal is reconsidered.

Key points

  • Section 73 applications can be used to amend planning conditions only.
  • They cannot change the description of development.
  • They are not limited to minor material amendments and can secure material changes as long as they do not result in a fundamental alteration to the scheme.
  • The application will result in a new stand-alone permission and the planning merits of the changes must still be considered.