Mikael Armstrong v Secretary of State for Levelling-Up, Housing and Communities & Anor.

Section 73 of the Town and Country Planning Act 1990 is limited to varying or removing conditions attached to an existing permission. It cannot alter the operative part or description of the permitted development, or impose a condition inconsistent with it.

Where the proposed change concerns only a condition and remains consistent with the operative part, section 73 contains no statutory restriction to “minor material amendments” or to changes which are not fundamental or substantial. The application must be entertained and determined on its planning merits. Government guidance cannot add such a restriction or operate as an impermissible gloss on the statute.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an Inspector’s dismissal of his appeal against Cornwall Council’s refusal of a section 73 application.

The original permission authorised the construction of one dwelling. A later section 96A application added a condition requiring construction in accordance with specified plans. The claimant sought to substitute plans showing a substantially different architectural design. The parties accepted that the proposed design remained within the operative description of development as the construction of one dwelling.

The central issue was whether section 73 nevertheless excluded a change which the Inspector considered a fundamental variation of the permission.

1. The claim succeeded and the Inspector’s decision was quashed.

2. Section 73 of the Town and Country Planning Act 1990 applies to an application for planning permission to develop land without complying with conditions attached to a previous permission. Subject to the express statutory limitations, it contains no restriction to “minor material amendments”, or to amendments which are not substantial or fundamental.

3. The essential statutory restriction is that section 73 cannot be used to vary the operative part or grant of the permission. A varied condition cannot be inherently inconsistent with the description of the permitted development. That was the point established in Finney v Welsh Ministers [2019] EWCA Civ 1868. Here, the permission remained one for the construction of a single dwelling, so substituting plans showing a different form and architectural style did not conflict with its operative part.

4. Arrowcroft [2001] PLCR 7 concerned a direct conflict between a condition and the operative part of the permission. It did not determine the scope of section 73 where no such inconsistency existed. The relevant reasoning in Vue Entertainment [2017] EWHC 588 (Admin) supported the absence of a statutory “minor” limitation. Its unelaborated suggestion that a condition might produce a fundamental variation did not justify reading that restriction into section 73.

5. A section 73 application is merely capable of being entertained. The proposed variation must still be assessed on its planning merits, with applicable procedural requirements and representations. The Inspector failed to undertake that assessment because he treated the Planning Practice Guidance’s “minor material amendment” concept as restricting the statutory scope of section 73. The guidance could not override or add to the statutory language.

6. Even if a fundamental-variation qualification existed, the Inspector had not adequately explained why a fundamental change in the dwelling’s design amounted to a fundamental variation of the permission itself, given that the operative permission remained for one dwelling.

The judgment does not state any prior judicial appeal. The claim was brought under section 288 of the Town and Country Planning Act 1990 against an Inspector’s decision dated 4 April 2022 dismissing the claimant’s section 78 appeal.