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

Town and country planning – Planning permission – Variation – Appellant granting planning permission for solar park and substation – Condition requiring development to be carried out in accordance with attached plans – Interested party applying to vary conditions omitting substation – Appellant granting application – Respondent successfully applying for judicial review – Whether variation inconsistent with operative part of original permission – Whether conditions fundamentally altering development – Appeal dismissed In 2017, the appellant local planning authority granted planning permission to the interested party for the development of a solar park at Woodington Farm, East Wellow. That development included a 33kV electricity substation. The permission was subject to conditions. By condition 2, the development was required be carried out in accordance with the approved plans, which included a drawing of the substation. In 2021, the appellant granted full planning permission to the interested party for a different electricity substation, also including ground mounted solar panels, within an area close to the centre of the scheme covered by the original 2017 permission. The appellant subsequently granted the interested party’s application, under section 73 of the Town and Country Planning Act 1990, to vary the conditions attached to the original permission, including condition 2, to remove from that permission development which would fall within the area of the 2021 permission, to enable both permissions to be developed in conjunction with each other. The proposed plans for the original permission no longer showed a substation. The respondent local resident applied for judicial review of that decision. She contended, amongst other things, that it was ultra vires section 73 of the 1990 Act because the new condition 2 conflicted with the operative wording of the permission; and/or fundamentally altered the permitted development. The High Court granted the application: [2023] EWHC 2221 (Admin); [2023] PLSCS 156. The appellant appealed. Held: The appeal was dismissed. (1) Section 73 of the 1990 Act enabled a person to apply 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. This appeal concerned the ambit of the power under section 73 to impose conditions on the new permission. The central issue was whether such conditions fell outside the scope of that power if: they were inconsistent in a material way with the operative part of the original permission (restriction (1)); and/or fundamentally altered the development permitted by the original permission, read as a whole (restriction (2)). Given that section 73(2) only allowed a local planning authority to consider the conditions imposed on a previous permission and impose different conditions from those contained in that decision, the principle that the authority must not go back on “the original permission”, in this context, had to refer to the operative part of that permission. The appellant’s suggestion that the conditions of a section 73 permission could alter the operative part of an earlier permission, although the operative part of a section 73 permission could not do that, was contrary to the statutory scheme. The appellant accepted that Finney v Welsh Ministers [2019] EGLR 56 had decided that section 73 did not confer that power. Restriction (1) accorded with the language and purpose of section 73, as explained in Finney. It was also consistent with the principle that the operative part of a section 73 permission might not differ from the operative part of the extant permission to be varied: R v Coventry City Council, ex parte Arrowcroft Group Plc [2001] PLCR 7 considered. (2) A condition would not be valid if it altered the extent or nature of the development permitted. A condition allowing for details of an alternative restoration scheme to be submitted for the local authority’s approval had to be interpreted by reference to the operative grant of the consent. To be lawful, a condition had to fairly and reasonably relate to the permitted development. Accordingly, the condition would not allow an alternative scheme to be approved outside the ambit of that grant, for example by importing material from offsite: Cadogan v Secretary of State for the Environment [1992] EGCS 123; (1992) 65 P & CR 410 considered. Section 73 was limited to applications to develop land without complying with conditions attached to a permission previously granted (section 73(1)). Parliament had empowered a local planning authority to grant a section 73 permission without any of the conditions to which the original permission was subject. What the planning authority might consider was limited by section 73(2). Parliament had expressly provided for specific situations where the power might not be used (section 73(4) and (5)). But it had not restricted the power to vary or remove conditions previously imposed to non-substantial or non-fundamental alterations. (3) The power in section 73 was subject to the restriction that it might not result in a permission, the operative part and/or the conditions of which were inconsistent with the operative part of the earlier permission, either in terms of the language used or its effect. No justification had been identified for imposing restriction (2) as an additional limitation on the power of section 73, in the light of its statutory purpose. Parliament had provided what it considered to be adequate procedural protections for the consideration of section 73 applications, including consultation and an opportunity for representations to be made. (4) The limitations on a planning authority’s power to grant permission for development different from that applied for were separate from the scope of section 73. The restrictions on the power to impose conditions in a section 73 permission were those set out in section 73 itself, the tests in Newbury District Council v Secretary of State for the Environment [1981] AC 578 and the requirement that those conditions must not be inconsistent with the operative part of the earlier planning permission. The power to impose conditions under section 73 was subject to restriction (1), but not to restriction (2). Restriction (1) was not limited to conditions which fundamentally or substantially altered the operative part of the earlier planning permission. Whilst a de minimis alteration of an operative part might not be ultra vires section 73, that concept only referred to trifling matters 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: R (Atwill) v New Forest National Park Authority [2023] PLSCS 54; [2023] PTSR 1471 considered. Robin Green and Robert Williams (instructed by Sharpe Pritchard LLP) appeared for the appellant; James Burton (instructed by Blake Morgan LLP) appeared for the respondent; The interested party did not appear and was not represented. Eileen O’Grady, barrister Click here to read a transcript of R (on the application of Fiske) v Test Valley Borough Council