There has been and will increasingly be a need for flexible planning permissions.
After the 2008 financial crash, section 96A was introduced to the TCPA 1990 in order to allow a planning authority to make a “non-material change” to a planning permission. Section 73 of the TCPA 1990 already permitted the grant of a new planning permission with amended conditions, effectively allowing minor material changes. The Finney case in the Court of Appeal has recently confirmed that section 73 applications cannot change the description or the nature of the permitted development and that section 73 variations must be consistent with the “operative” part of the original planning permission (we covered the issues in our Finney blog but there is still a need for care).
Until the Finney case, authorities were using these powers to allow the shape and nature of schemes to change. They now have less freedom. The combination of Finney and the economic impact of COVID-19 means that it is likely that there will be further pressure on the Government once again to loosen the approach to amending planning permissions.
However, given all the other pressures on their time, is this sensible? Instead, looking at the current flexibility of planning permissions might a good place to start – especially for planning applications which will be submitted within the next few months. If mistakes are avoided early in the planning process, maybe there will be enough adaptability further down the line to avoid the need for any section 73 and section 96A applications in due course.
Despite the Finney case, many planning applications are still including too much detail within the description of development. This typically comprises of listing the number of units in the description of the development and the planning condition, or listing the specific use class of the development. Some Councils push for this. We have recently seen planning authorities adding references to use classes, numbers of units and heights into descriptions of development sometimes without asking for the consent of the applicant.
Instead, it would be better to exclude the number of units in the description of the development and only refer to uses as “residential” or “commercial”. If planning permissions are kept as simple as possible, this should also remove the need for unnecessary planning applications and wasted fees. We recently assisted on a planning application where the description of a development simply stated that it would involve the redevelopment of a care home and residential units. Unlike the example above, neither the number of units nor the number of care home spaces were specified, providing future flexibility.
Of course, there remains an ability to remove details such as the unit number in the description of development using section 96A leaving that to be controlled by conditions and plans. A section 73 application could then be used to increase the number of units by amending the conditions and without offending Finney. Although workable, in the future we should all try to get the descriptions right at the outset to avoid any legislative fixes.
In these uncertain times, it may be tempting for us to fall back on amending planning permissions but it is probably more important to take extra time and care when considering and drafting planning applications from the outset.