In Test Valley Borough Council v Fiske [2024] EWCA Civ 1541, the Court of Appeal dismissed an appeal against a High Court order quashing a ‘variation’ section 73 permission in relation to a solar farm development. The judgment provides clarity on the extent of authorities’ powers under both sections 73 and 70 of the Town and Country Planning Act 1990.
In a nutshell, a condition cannot materially contradict the grant itself (also called the ‘operative part’) in any way.
The practical upshot is that attempts to use section 73 to achieve material alterations to detailed planning permissions will need to be used with caution. There is likely to be an increase in ‘full’ section 70 applications to make changes to permitted schemes. However, the judgment has further ramifications.
The result for the respondent, Mrs Fiske, reflects something of a David v Goliath triumph on its particular facts. Its consequences for planning practitioners, though, flow from the principles clarified by the case.
The issues arose in relation to a permission for a 72-hectare solar farm granted in 2017. The 2017 permission included the words ‘substation’ in the description of the development and stated that permission was granted ‘in accordance with the approved plans listed below’. Those included a drawing of a 33kV substation. In fact, a 33kV substation was not enough to connect to the 132kV electricity grid: a much larger distribution network operator (DNO) substation compound was also needed.
The developer attempted to plug the gap (including obtaining one permission that was quashed).
In 2021, the council granted a standalone section 70 permission for a DNO compound in the centre of the site (a ‘drop-in’ permission). Then in 2022, it granted a section 73 permission to ‘stitch’ the 2017 and 2021 consented schemes together. However, although the section 73 permission retained the same words describing the development as the original permission, including ‘substation’ and a list of ‘approved plans’, those plans did not include the 33kV substation (or any substation). Condition 2 of the permission required the development to be carried out in accordance with the approved plans.
Fiske challenged the grant of the section 73 permission on the principal basis that the language of the statutory provision itself restricts the authority to consideration of ‘only’ the question of new/varied conditions. Hence, a condition cannot materially alter the fixed grant/operative part of the permission. She relied on Court of Appeal authority in Finney v Welsh Ministers [2019] EWCA Civ 1868 [2020] PTSR 455; Cadogan v Secretary of State (1992) 65 P & CR 410; and the High Court judgment of Sullivan J (as he then was) in R v Coventry City Council ex parte Arrowcroft Group Plc [2001] PLCR 7, for this ‘restriction 1’ limitation.
The council accepted the court’s previous ruling in Finney, that a planning permission granted under section 73 cannot alter the wording of the ‘operative part’ of the original permission, but argued that it could impose conditions under section 73 which had the effect of altering the operative part. It relied on, inter alia, the High Court decision in the section 70 case Kevin Stevens v Blaenau Gwent CC [2015] EWHC 1606 and the Wheatcroft principle.
Furthermore, it contended that the only restriction on imposition of conditions, beyond the Newbury conditions, was that there should not be a ‘fundamental’ or ‘substantial’ alteration of the development originally permitted. Fiske also contended for this ‘restriction 2’ limitation and argued the removal of the substation was a fundamental alteration.
Morris J accepted Fiske’s arguments under both restrictions 1 and 2, quashing the 2022 permission on that basis.(He also upheld her other ground – we concentrate here on the section 73 points.)
The council appealed, arguing that there is no restriction 1 limitation and that section 73 is subject only to a prohibition against a ‘fundamental/substantial alteration’ of the originally permitted development (restriction 2).
The judgment focuses on the existence or otherwise of restriction 1: whether a condition imposed under section 73 that is materially inconsistent with the operative part is ultra vires. However, it also sets out reasoned conclusions regarding ‘restriction 2’, and provides important guidance for general application, including clarification of what constitutes the ‘operative part’ of a planning permission.
On the main point, the judgment affirms the important distinction between the ‘operative part’ of a permission and the conditions. This ‘dichotomy’ goes directly to the extent of an authority’s powers under section 73 (judgment [63]). The keystone is that conditions imposed under section 73 cannot be materially inconsistent with the operative part [64-65].
However, the judgment goes further.
First, it explains that as regards key restriction 1, there is no difference of principle between sections 73 and 70: a permission cannot ‘give with one hand, take with the other’, per Sullivan J in Arrowcroft, and in accordance with the principle explained in Cadogan (see judgment [69] onwards).
Second, it explicitly supports Fiske’s submission that the ‘operative part’ of a permission includes all the ‘approved’ plans listed, and it further suggests that they may be included in the operative part of a ‘full’ permission even if it is silent.
Third, it rejects ‘restriction 2’, and confines a Wheatcroft-type limit on the use of conditions to section 70 (on the basis that is a procedural limitation, applicable only to live section 70 applications).
The clarity provided by Fiske should be helpful to both authorities and developers, addressing the considerable uncertainty that exists in the industry regarding the vires of conditions under section 73. However, the council has sought permission to appeal to the Supreme Court, so this may not be the end of the proceedings.
Sara Hanrahan is a partner at Blake Morgan. James Burton is a barrister at 39 Essex Chambers
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