Court of Appeal hands down ruling on restrictions on use of section 73 TCPA

Test Valley Borough Council has lost a case in the Court of Appeal over the use of section 73 of the Town and County Planning Act 1990.

The section enables a person to make an application to a local planning authority in respect of an extant planning permission granted subject to conditions, for the grant of a new permission with different or no conditions.

Test Valley, the LPA, had accepted that the Court of Appeal had decided in Finney v Welsh Ministers [2019] EWCA Civ 1868; [2020] PTSR 455 that the operative part of a planning permission granted under s.73 cannot differ from the operative part of an extant permission.

Lord Justice Holgate said the appeal brought by the council in Test Valley Borough Council v Fiske [2024] EWCA Civ 1541 concerned “the ambit of the power under s.73 to impose conditions on the new permission".

The Court of Appeal judge said the central issue was "whether such conditions fall outside the scope of that power (i.e. they are ultra vires) if:

(1) they are inconsistent in a material way with the operative part of the original permission ("restriction 1");

(2) if they make a "fundamental alteration" of the development permitted by the original permission, reading that permission as a whole ("restriction 2")."

Test Valley, the appellant, argued the power to impose conditions under s.73 is subject only to the second restriction and not the first.

Holgate LJ explained: “In other words, although the operative parts of the extant permission and the s.73 permission must be the same, the conditions of the new permission may alter that grant, so long as that alteration is not ‘fundamental’.”

The respondent, local resident Chala Fiske, submitted that s.73 is subject to restriction (1) and also to restriction (2), even where restriction (1) is not infringed (i.e the operative part remains unaltered).

The background to the appeal is that the council had in July 2017 granted a full planning permission to Woodington Solar for a solar farm on 72 hectares of land at East Wellow.

This included provision for a substation and a condition stipulated “the development shall not be carried out other than in complete accordance with the approved plans".

It was common ground that the development approved by the operative part of the 2017 planning permission included a 33kV substation as shown on a drawing.

In May 2021, Test Valley granted a full planning permission for a 132kV substation and a number of solar panels on 6.8ha of land in the centre of the site of the 2017 permission.

This proposal was similar to that subject to a s.73 permission granted in July 2019 and subsequently quashed by the High Court.

In December 2021, Woodington Solar made a second application under s.73 of the TCPA 1990 to vary conditions of the 2017 permission so that a new s.73 permission would be fully consistent, and could be carried out in conjunction with, the more recently approved substation and solar array permission.

Holgate LJ noted: “It is common ground that the more recently approved ‘substation’ referred to the 132kV DNO substation. But the proposals in the s.73 application did not discuss the 33kV substation approved by the 2017 permission.”

Test Valley in April 2022 granted the s.73 permission, which had been the subject of Mrs Fiske’s successful challenge in the High Court.

In that case, Mrs Fiske applied to quash the 2022 planning permission on the grounds that it was ultra vires because, unlike the 2017 permission, it did not include a 33kV substation and that Test Valley failed to have regard to the omission of the 33 kV substation as a mandatory material consideration.

A condition of this permission provided the development "shall not be carried out other than in complete accordance with the approved plans”, which referred still to the 33kV substation approved in 2017.

The judge said the site layout plan for the 2022 permission did not show any development within the central site of about six hectares, the subject of the 2021 permission.

It therefore did not grant planning consent for any development authorised by the 2017 permission within that central site, in particular the solar arrays to the west of the 132kV overhead line, the 132 kV DNO substation and the 33kV substation.

Test Valley said: “The primary purpose of the s 73 permission under challenge (the 2022 Permission) was to remove any physical inconsistency between the solar park permitted in 2017 and the 2021 Permission.”

It added: “The intended effect of the 2022 Permission was to allow the solar park and the 2021 substation to be built out, and operate, in tandem.”

Woodington Solar had by then decided to omit the 33kV substation and so the 2022 permission did not replicate a condition of the 2017 permission requiring details of this to be approved. Instead, a condition required the development permitted by the 2022 permission consistent with exclusion of the 33kV substation.

Test Valley argued the operative part of the 2022 permission was valid as it referred to a ‘substation’.

Holgate LJ said Test Valley’s grounds of appeal were that the High Court had been wrong to decide that any conflict between the conditions of a s.73 permission and the operative part of the permission it amends is ultra vires, and also wrong to conclude that the omission of the 33kV substation from the s.73 permission in 2022 was a ‘fundamental’ alteration of the development authorised by the 2017 permission.

He said Test Valley accepted the operative part of a s.73 permission cannot alter the operative part of an extant permission, but maintained the conditions of a s.73 permission can have that effect.

The judge said the council relied on a line of authority that holds that a condition may be imposed on a planning permission to reduce the development provided that this would not allow something that in substance was not that which had been applied for.

Lord Justice Holgate rejected grounds 1 and 2 advanced by Test Valley, which made it unnecessary to rule on a further two raised by the council.

Holgate LJ  said: "The limitations upon a planning authority's power to grant permission for development different from that applied for are a separate matter from the scope of s.73.

“Instead, the restrictions upon the power to impose conditions in a s.73 permission are those set out in s. 73 itself, the Newbury tests [1981 AC 578] and the requirement that those conditions must not be inconsistent with the operative part of the earlier planning permission.”

The Court of Appeal judge continued: "The power to impose conditions under s.73 is subject to restriction (1), but not to restriction (2). Restriction (1) is not limited to conditions which fundamentally or substantially alter the operative part of the earlier planning permission.

"Whilst a de minimis alteration of an operative part may not be ultra vires s.73 (see Lane J in R (Atwill) v New Forest National Park Authority [2023] EWHC 625 (Admin); [2023] PTSR 1471 at [64]), that concept only refers to trifling matters which are ignored by the law. It would not apply, for example, to the alteration of that part of a grant which relates to incidental or ancillary development."

Lord Justice Dingemans and Lord Justice William Davis both agreed.

Mark Smulian