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Implications of the recent appeal decision regarding s73 applications

Updated: Apr 23

What is the implication of the recent appeal decision regarding s73 applications?

Planning specialist, Chrisa Tsompani explains:

’In the appeal decision reference APP/L5240/W/23/3332225, the London Borough of Croydon argued that an application under s73 of the TCPA is not the correct legal mechanism to alter the level of affordable housing previously secured through a planning obligation in the form of a s106 Legal Agreement. The reason given by the Council was the lack of a link between the alterations being sought to the drawings and the amended level of affordable housing now proposed in the planning obligation.

The Inspector re-emphasised that planning agreements made under s106 of the Planning Act are free standing legal instruments, which don’t need to be attached to a planning permission. The inspector further reviewed Norfolk Homes Limited v North Norfolk District Council & another [2020] EWHC 2265, which confirmed that entering into a planning obligation appropriate to the terms of new permission should be a contemporaneous decision based on the circumstances at the time and 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 obligation. The Inspector concluded that the circumstances for this case were such that there is was need for a planning obligation in different terms to the original to facilitate the delivery and that the s73 application was in this instance an appropriate means to reduce the level of affordable housing relative to that previously secured.

This decision reinstates the principle that s73 applications lead to a separate planning permission and that all the material factors, including the need to include planning obligations to make the amended development acceptable, must be reviewed by LPAs at the time of the s73 application. However, the merits of this case were also crucial for the outcome of the appeal.”

Chrisa is a planning and environmental law specialist with over 16 years’ experience. She is highly experienced in complex planning and environmental issues, having advised on planning and highway agreements, Biodiversity Net Gain, development control, enforcement, planning policy, s106 and s111 agreements as well as compulsory purchase orders to name a few.



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