There has long been some confusion regarding the relationship between existing planning permissions, S73 applications to amend existing planning permissions and existing S106 agreements and unilateral undertakings.
These issues have been considered in
Norfolk Homes Limited v North Norfolk District Council & another [2020] EWHC 2265
REDROW HOMES Limited v SECRETARY OF STATE FOR LEVELLING UP, HOUSING AND COMMUNITIES and NEW FOREST DISTRICT COUNCIL [2023] EWHC 879 (Admin)
Armstrong v Secretary of State for Levelling-Up, Housing and Communities & Anor [2023] EWHC 176 (Admin)
And now rather neatly in appeal reference APP/L5240/W/23/3332225, which explains the position more briefly.
The following paragraphs from the appeal
7. It is common practice to impose a condition on planning permissions requiring implementation in accordance with approved drawings. It is possible to amend these drawings via an application made under a s73 of the TCPA2. A limitation being that the operative part of the permission (the description of development) cannot be amended. That would not be the case here. Section73(2) explains that when considering such applications, the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted. The practical consequences of discharging or amending a condition(s) is a material consideration. If an application pursuant to s73 is approved, then a standalone planning permission is created. The implication being that an applicant can choose to implement either the original or the new consent.
8. Planning obligations are freestanding legal instruments that do not form part of a planning permission. Consequently, any planning obligation completed during the assessment of the original permission would not be binding on the new s73 permission unless it is specifically drafted to do so. Thus, when contemplating whether to permit a s73 application, it is necessary to consider the desirability of entering into a new planning obligation. Indeed, a planning obligation may be necessary to make the amended scheme acceptable in planning terms. This can be achieved by modifying the existing obligation or submitting a new one. As a result, there is no need for a s73 application to also be accompanied by an application under s106A of the TCPA.
9. Caselaw has confirmed that the desirability of entering into a planning obligation appropriate to the terms of the new permission should be a contemporaneous decision based on the circumstances at the time (see North Norfolk). The judgment also explains that sometimes in the context of a s73 application it will be appropriate or even essential for a planning obligation to have different terms to the original, and any disagreement flowing from this can be resolved through an appeal. An example being a change in policy which requires an increased level of affordable housing. It is of note that this example flows from a change in circumstances unrelated to amended drawings. This is an indicator that material changes in circumstances that are wider in scope than
Appeal Decision APP/L5240/W/23/3332225
https://www.gov.uk/planning-inspectorate 4
an alteration to the scheme drawings can result in an appropriate justification
for entering into a planning obligation in different terms to the original.
10. In this instance, a change in policy has not made it appropriate or essential to amend the obligation. However, there has been a significant change in circumstances relating to the viability of the scheme. It seems to me that it is a matter of planning judgment whether the change in circumstances makes it appropriate, essential or desirable to enter into a planning obligation in different terms to the original. Given the case law outlined above, the terms of a new obligation may be connected to or intertwined with the amendments sought to the drawings, but there is nothing of substance to suggest they must. Consequently, it would be going too far to suggest an amended obligation must be a consequence of, or directly related to, changes flowing from the proposed alterations detailed on the new drawings.
11. There is no dispute between the Council and appellant that since the original permission was approved, and the evidence underpinning it prepared, construction costs have rapidly risen whilst house prices have remained static. This has had a significant impact on the viability of the scheme. As mentioned above, the situation is so altered that the Council and appellant agree the scheme can no longer provide affordable housing and remain viable. Moreover, there is also common ground that the provision of affordable housing is not a benefit, alone or taken with other factors, which is required to outweigh any harmful impacts emulating from the scheme. Indeed, the Council has only identified limited harm in respect of the housing mix, which is outweighed by other considerations in any event. In these circumstances, altering the level of affordable housing would not be a fundamental change to the proposal.
12.Therefore, the current circumstances are such that there is a need for a planning obligation in different terms to the original to facilitate delivery. The altered terms of the planning obligation would be consistent with the development plan taken as a whole. The consequence being that the change would not have a bearing on whether the scheme would be acceptable. Thus, the amended planning obligation is necessary, reasonable, supported by development plan policy and proportionate in the context of the prevailing circumstances. Therefore, it is desirable, essential and appropriate to consider a planning obligation indifferent terms to the original, namely the provision of 0% affordable housing with a review mechanism as required by the LP. In conclusion, the s73 application is an appropriate means in this instance to reduce the level of affordable housing relative to that previously secured.
This appeal has a broad application to all developers who have onerous planning S106 agreements but have not commenced work, provided their agreement does not include a clause applying to future S73 applications.
More care must be taken if work has started on site as the Redrow Homes case makes it clear that in those cases where a payment or affordable housing has been triggered by progress on site, a future S73 application will not relieve the developer of existing breaches of the S106 Agreement.
Inevitably each case has its own challenges – so if you are in doubt do telephone us!
