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The scope of S73 TCPA and Local Planning Authorities’ general power to impose conditions

Sara Hanrahan and James Burton examine a recent Court of Appeal judgment that clarifies some key points of legal principle concerning restrictions on the use of s.73 of the TCPA (Town and Country Planning Act) and has implications for LPA (Local Planning Authorities)’ power to impose conditions generally.

On 10 December, the Court of Appeal handed down judgment in Test Valley Borough Council v Fiske [2024] EWCA Civ 1541, dismissing the Council’s appeal. The judgment clarifies the scope of s.73 TCPA, and it also contains important guidance as to what local authorities can and cannot do when imposing conditions on planning permissions generally, including under s.70 TCPA.

The Council accepted the Court’s previous ruling in Finney v Welsh Ministers [2019] EWCA Civ 1868; [2020] PTSR 455, that a planning permission granted under s.73 cannot alter the “operative part” of the earlier original permission but argued that it could impose conditions under s.73 which had the effect of altering the operative part. 

The only restriction being that there should not be a “fundamental” or “substantial” alteration. The Respondent argued that a LPA cannot impose a condition that is materially inconsistent with the operative part, to any extent and that was what the Council had done here.

The Court focused on that question of whether a condition materially inconsistent with the operative part was ultra vires. But it also dealt with the agreed “fundamental” alteration restriction, as well as providing important guidance of general application, beyond s.73. This includes clarification of what is the “operative part” of a planning permission.

Facts

The points of principle arose in relation to a solar farm which had been granted detailed permission in 2017. The words describing the development for which permission was granted included a “substation”. The 2017 permission then stated that permission was granted “in accordance with the approved plans listed below”, and those included a plan of a 33kV substation. In fact, a 33kV substation was not enough to connect to the grid: a much larger distribution network operator compound was also needed. A standalone s.70 application was granted in 2021 for the compound within the centre of the 2017 permission site (a “drop in”). Then, in 2022, the developer sought permission under s.73 to ‘stitch’ the two consented schemes together. However, the 2022 s.73 permission, although retaining the same words describing the development as the 2017 permission, including “substation”, had a different list of plans, with no plan showing a substation, let alone a 33kV substation, and had a condition 2 that required the development to be carried out in accordance with the approved plans.

It was common ground that the effect of condition 2 to the 2022 permission was to prohibit a substation, of any sort, including a 33kV substation, contrary to the operative wording.

It was on the basis that such an inconsistency was ultra vires s.73, on the statutory wording and assisted by Court of Appeal authority in the form of Finney and Cadogan v Secretary of State for the Environment (1992) 65 P & CR 410, along with the High Court decision in R v Coventry City Council ex parte Arrowcroft Group Plc [2001] PLCR 7, that Morris J quashed the 2022 permission.

Decision

The Council appealed, arguing that s.73 is subject only to a prohibition against a “fundamental alteration”, or “substantial alteration” of the original permission, and that what it had done was not fundamental or substantial, so was lawful.

The Court of Appeal rejected that argument, as contrary to the statutory wording, and also the authorities. The key ratio of the judgment (given by Lord Justice Holgate, with which Lord Justices Dingemans and William Davis agreed) is that conditions under s.73 cannot be inconsistent in a material way with the operative part of the original permission.

However, the judgment goes further.

First, it explains that as regards that key restriction, there is no difference of principle between s.73 and s.70: a permission cannot it “give with one hand, take with the other” as Sullivan J observed in Arrowcroft.

Second, it confirms the Respondent’s submission that the “operative part” of the 2017 permission included all the plans “listed below”.

Third, it concludes (albeit the point was not the subject of argument) that there is no additional restriction on the imposition of conditions, so no “fundamental” alteration / “substantial” alteration test, unlike the Wheatcroft limit on the use of conditions under s.70 (this on the basis that Wheatcroft is a procedural limitation, applicable only to live s.70 applications).

Learning Points

The key take-aways are below: 

  • Section 73 does not allow any variation to the operative part of the original (extant) permission, and as for the possibility of a de minimis change, that concerns only “trifling matters”.
  • Conditions under s.73, or s.70, cannot be materially inconsistent with the operative part.
  • The operative part of a permission covers both the description of the development and any approved plans listed in the heading.
  • The judgment also leaves the way clear for the argument (mooted by the Respondent) that the “operative part” to a detailed permission necessarily includes the application plans and drawings, even if the permission is silent (Barnett v SSCLG [2009] EWCA Civ 476; [2010] 1 P&CR 8).
  • However, if that is wrong, then to retain at least a possibility of future flexibility, the description of development should be kept brief, with no words such as “granted in accordance with your application”, let alone “in accordance with the plans listed”, and plans should be listed only within a condition.
  • If it is not materially inconsistent with the operative part, then a condition imposed under s.73 is not limited to only a “minor material” change: fundamental change may be possible, in theory, and the Wheatcroft principle or similar has no application to s.73.

The clarity provided by this case is helpful for both local authorities and developers. It also removes possible confusion regarding any overlap between the s.73 power, and the new power under s.73B if that is brought into force. The s.73B power is not limited to consideration of conditions only, so permits alteration of the operative part of the extant permission, so long as the change is not substantial.

Sara Hanrahan is a Partner at Blake Morgan LLP and James Burton is a barrister at 39 Essex Chambers. They were instructed by Mrs Fiske, the Respondent (the Claimant in the High Court), both in the High Court and on appeal.