Variation of planning permission

January 30th, 2023 by James Goudie KC

Section 73 of TCPA 1990 applies to Applications to develop land without compliance with conditions subject to which a previous planning permission was granted. ARMSTRONG v SoS for LEVELLING-UP etc and CORNWALL COUNCIL (2022) EWHC 142 (KB) concerned a refusal by the Council of the Claimant’s application to vary the plans for construction of a new dwelling under an extant planning permission. The main issue that arose was whether the Planning Inspector lawfully concluded that the Application would give rise to a fundamental variation to that permission  such that the Application fell outside the scope of Section 73, in circumstances where the variation of the condition would not give rise to any conflict with the description in that permission of the development. The Court held that the Planning Inspector did not act lawfully, for any or all of 8 reasons, set out at paras 74-94 inclusive. The correct starting point is that there is nothing in Section 73 that restricts its application to non-fundamental variations. Provided that an application is limited to non-compliance with a condition, rather than any other part of the permission, it is within the scope of Section 73.

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