Recent High Court judgement on Section 73

A recent High Court judgment could allow developers for greater leeway to amend existing permissions through Section 73.

A recent High Court ruling in November 2018 found that a condition could be altered under Section 73 to contradict a permission, as long as the variation did not represent a “fundamental alteration of the proposal put forward in the original application” and could lawfully have been imposed on the original permission at the time. This ruling by judge Sir Wyn Williams followed a judgment in 2017 (Vue Entertainment v City of York Council) which implied that conditions could only be varied if they did not contradict the terms of the core permission, as opposed to attached conditions.

Sir Williams’ ruling concerned an application for two wind turbines. The Section 73 application sought to increase the height of the turbines to 125 metres, despite the original permission limiting the height to 100 metres. The approval of the Section 73 application by a Planning Inspector was challenged, on the basis that she did not have authority to approve a variation to conditions that had the effect of contradicting the permission itself.

With this in mind, developers will surely be tempted to use the judgment to get more significant variations through, such as an increase in housing numbers on residential schemes.

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