One significant change brought in by the Levelling Up and Regeneration Act (LURA) is the introduction of a new power to amend planning permissions – the s.73B route.
This process has been developed in response to the Finney judgment, which ruled that varying the description of development is outside the remit of s.73 applications. Since the ruling, the submission of a s.96a application has been accepted as the route to amend the description of development concurrently with the s.73 application so as to secure minor material amendments that would otherwise be outside of the remit of this application.
The provisions for s.73B will enable local planning authorities to grant a new planning permission for developments where they are satisfied that its effect (in terms of the development it authorises and any associated conditions) will not be substantially different from that of the existing permission. The primary objective of this provision is to streamline the concurrent s.96a and s.73 application process into a single application.
Similar to s.73 applications, local planning authorities can only consider the specific elements that differ between the new permission and its predecessor.
There are also some caveats. Amendments via s.73B cannot be used: to allow for extensions of time; to disapply Biodiversity Net Gain conditions; or to remove requirements to provide Progress Reports.
The new ‘substantially different’ test will sit alongside the well-established ‘non-material’ and ‘minor material’ lexicon for amendment applications. We anticipate, as per the current processes, that applicants and local planning authorities are likely to have contrasting opinions about what ‘substantially different’ effects of developments are in practice. A planning judgment will need to be made on a case-by-case basis as to what ‘substantially different’ to the existing permission means in the context of the effects of the specific amendment.
Before s.73B applications are brought into force, further regulations are required to be made, and the speed at which they are progressed will be subject to the Government’s priorities in the lead-up to the General Election, given the volume of new regulations needed to fully implement the Act.
The proper application of s.73B amendments and their scope will also, of course, evolve and be tested through the courts in time.
Our initial thoughts, however, are that – in London and elsewhere - the scope of s.73B amendments may allow for a broader range of changes than s.73 applications. For example, as long as the effects of the development are not substantially different, s.73B amendments might potentially be used to allow the introduction of alternative uses which would be comparable in terms of their effect. This might unlock a broader range of amendment opportunities for stalled schemes across the capital and is to be welcomed.