S.73 Permissions: Any inconsistency between revised conditions and the description of development held to be unlawful

The High Court recently ruled that a planning permission granted by a council that varied a previous planning permission for a solar farm by removing an electricity substation from the plans was unlawful. Robin Green and Robert Williams examine the judgment.

In R (Fiske) v Test Valley Borough Council [2023] EWHC 2221 (Admin), the High Court (Mr Justice Morris) has held that section 73 TCPA 1990 cannot be used to amend conditions in a way which would give rise to any conflict or inconsistency with the description of development in the grant of permission. This is so even if all the amended condition does is to omit a relatively small part of that which is permitted.

The Case

The case concerned a solar farm for which permission had originally been granted in 2017. The description of development in the grant referred to the installation of a solar park, including amongst other matters a “substation”, the details of which were required by condition to be approved subsequently (which they were).

In 2021 the owner of the solar farm sought, and obtained, separate planning permission for a different substation on part of the land within the area of the solar farm. Then in 2022 the owner obtained a permission under section 73 varying the original solar farm permission by omitting the substation condition and any reference to the substation from the approved plans. The purpose of this was to allow the solar farm to operate in tandem with the substation which had been separately permitted in 2021.

The Judgment

Morris J found that this was unlawful. He held (albeit noting that the state of the authorities was confused and there were forceful submissions to the contrary) that the balance of case law on section 73 establishes that:

• under section 73 there is no power to introduce a condition which creates a conflict or is inconsistent with the operative wording of the existing original planning permission;
• that restriction is not limited to a case where the conflict or inconsistency with the operative wording is fundamental; it suffices that there is any conflict; it encompasses the position where the condition alters the nature and extent of the grant i.e. as found in the operative wording;
• the cases which were relied on by the Defendant as authority for the proposition that conditions could legitimately cut down the scope of the grant could be distinguished on the basis that “there is a difference in principle between modifying a proposal (before permission is granted) by a condition imposed under section 70 (by cutting down or altering, as long as the change is not fundamental) and changing a condition to an existing grant under section 73.”

Applying those principles to the facts of the case, the judge found that because the amended plans omitted a substation, the conditions attached to the section 73 permission which required the development to be carried out in accordance with the amended plans created a conflict with the operative wording, which rendered the section 73 permission unlawful.

The judge also held that there is a further restriction on the use of section 73 (albeit recently rejected in the case of Armstrong v Secretary of State for Levelling-Up, Housing and Communities [2023] EWHC 176 (Admin)): no fundamental alteration to the original permission is permissible (even where there is no conflict between the conditions and the words of grant).

Conclusion

Developers and local planning authorities considering whether a permitted scheme can be varied by way of an application under section 73 will need to give careful consideration to the possibility of conflict between any revised conditions and the operative wording of the original permission.

Robin Green and Robert Williams are barristers at Cornerstone Barristers. They acted for Test Valley Borough Council in this matter.