R (on the application of Fiske) v Test Valley Borough Council

Town and country planning – Planning permission – Variation – Defendant local authority varying conditions in respect of earlier planning permission pursuant to section 73 of Town and Country Planning Act 1990 – Claimant applying for judicial review – Whether decision ultra vires – Whether defendant failing to have regard to mandatory material consideration – Application granted In 2017, the defendant local authority granted the interested party planning permission for the development of a solar farm, including ground mounted solar panels and a 33kV electricity substation on approximately 72 hectares of agricultural land at Woodington Farm, Woodington Road, East Wellow, Test Valley, Hampshire. In 2021, planning permission was granted for the installation of a different electricity substation, solar panels, ancillary equipment, infrastructure and access on 6.78 hectares of land located within an area close to the centre of the scheme covered by the original permission. In 2022, the defendant granted planning permission pursuant to section 73 of the Town and Country Planning Act 1990 varying the conditions attached to the original permission, the effect of which was to remove the 33kV substation, allowing the remainder of the solar farm permitted by the 2017 permission to operate in tandem with the 2021 permission. The claimant, who lived near the site, applied for judicial review contending that the 2022 permission was ultra vires section 73 since, by removing the substation permitted by the original permission, the defendant granted a permission that conflicted with the operative wording of the original permission and/or that fundamentally altered the development permitted under the original permission. Further, the defendant failed to have regard to a mandatory material consideration, namely the fact that in granting the 2022 permission it would be granting a permission which altered the original permission by removal of the substation. Held: The application was granted. (1) Section 73(1) was on its face limited to permission for the development of land “without complying with conditions” subject to which a previous planning permission had been granted. The purpose of such an application was to avoid committing a breach of planning control of the second type referred to in section 171A. On receipt of such an application, section 73(2) said that the planning authority had to consider only the question of the conditions attached to the development. The natural inference from that imperative was that the planning authority could not use section 73 to change the description of the development. Section 73 produced a fresh planning permission and the previous planning permission remained intact. It also permitted only a change to the conditions of the previous planning permission and not to the grant of permission itself. Under section 73, there was no power to introduce a condition which created a conflict or was inconsistent with the operative wording of the existing original planning permission (restriction 1). Restriction 1 was distinct from any wider “fundamental alteration” restriction (restriction 2). Restriction 1 was not limited to a case where the conflict or inconsistency with the operative wording was fundamental; it sufficed that there was any conflict and encompassed the position where the condition altered the nature and extent of the grant, ie, as found in the operative wording. (2) The “condition on proposed development” cases (in particular, Kent County Council v Secretary of State for the Environment (1977) 33 P&CR 70 and Bernard Wheatcroft Ltd v Secretary of State for the Environment (1982) 43 P&CR 233) did not assist and could properly be distinguished. There was a difference in principle between modifying a proposal (before permission was granted) by a condition imposed under section 70 (by cutting down or altering, as long as the change was not fundamental) and changing a condition to an existing grant under section 73: Finney v Welsh Ministers [2019] EWCA Civ 1868; [2019] EGLR 56 applied. Wheatcroft, Cadogan v Secretary of State for the Environment (1992) 65 P&CR 410; [1992] EGCS 123; R (Vue Entertainment Ltd) v City of York Council [2017] EWHC 588 (Admin); [2017] PLSCS 14; R (Wet Finishing Works Ltd) v Taunton Deane Borough Council [2017] EWHC 1837 (Admin) [2018] PTSR 26; R (Holborn Studios) v Hackney London Borough Council [2017] EWHC 2823 (Admin); [2017] PLSCS 207; [2018] PTSR 997; R v Coventry City Council, ex parte Arrowcroft Group Plc [2001] PLCR 7; Reid v Secretary of State for Levelling Up, Housing and Communities [2022] EWHC 3116 (Admin) 90 and Armstrong v Secretary of State for Levelling-Up, Housing and Communities [2023] EWHC 176 (Admin); [2023] PLSCS 21 considered. (3) The operative wording of the original permission gave permission for a solar farm and, within that, a 33kV substation. On the other hand, condition 2 prohibited the carrying out of the development with a 33kV substation. If the original permission in 2017 imposed a condition which prohibited a 33kV substation, while retaining the same operative wording, it might well not be in accordance with the detailed provisions of the application and thus alter the extent or nature of the development permitted: Cadogan considered. Applying restriction 1 in the present case, condition 2 of the 2022 permission was inconsistent with and in conflict with the operative wording of the original permission which the 2022 permission sought to vary. If, upon grant of the 2022 permission, the word “substation” had been excised from the operative wording, then the 2022 permission would have clearly been unlawful. There was a conflict between what was permitted in the original permission and what condition 2 in the 2022 permission required. Accordingly, the 2022 permission was outside the power conferred by section 73 and was unlawful. (4) If that was wrong and there was only a single restriction (restriction 2) or if restriction 1 was limited to a “fundamental” conflict or inconsistency with the operative wording, the removal of the 33kV substation, and the prohibition on its construction, in the 2022 permission, constituted a fundamental alteration of the development permitted by the original permission. (5) If the removal of the 33kV substation was not ultra vires section 73 and was otherwise a permissible exercise of that power, it remained a possibility that the original permission could be fully implemented on its own, and if so, the need for the substation remained. Therefore, the removal of the substation, and the prohibition upon its construction, in the 2022 permission, constituted a fundamental alteration of the development permitted by the original permission. On the evidence, the defendant did not have regard to the fact that the 2022 permission removed the substation, in breach of its obligation to have regard to a mandatory material consideration. James Burton (instructed by Lewis Silkin LLP) appeared for the claimant; Robin Green and Robert Williams (instructed by Sharpe Pritchard LLP) appeared for the defendant. Eileen O’Grady, barrister Click here to read a transcript of R (on the application of Fiske) v Test Valley Borough Council