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

Section 73 of the Town and Country Planning Act 1990 creates a fresh permission for the same development, subject to different conditions. It cannot be used to impose a condition that conflicts with, or alters the nature or extent of, the operative wording of the existing permission. That restriction is distinct from the wider restriction against a fundamental alteration of the permitted development. A condition under section 73 cannot remove an element expressly included in the operative grant. The authority must also have regard to the removal of such an element as a mandatory material consideration. Where the authority fails to do so, relief will not be refused under section 31(2A) of the Senior Courts Act 1981 unless it is highly likely that the outcome would have been substantially the same.

The claimant sought judicial review of Test Valley Borough Council’s grant of planning permission under section 73 of the Town and Country Planning Act 1990. The permission varied conditions attached to an earlier permission for a solar farm and removed the 33kV substation shown in the plans associated with that earlier permission.

The challenge alleged that the permission was ultra vires because it conflicted with the operative wording of the earlier permission and fundamentally altered the permitted development. It was also alleged that the Council failed to consider the removal of the substation as a mandatory material consideration. The central issues were the limits of section 73 and whether the statutory no-difference test could prevent relief.

1. Ground 1 succeeded. Section 73 produces a fresh planning permission, while leaving the previous permission intact. Its scope is confined to changing the conditions and does not extend to changing the operative grant or description of development.
2. The court identified two restrictions. First, a condition granted under section 73 cannot conflict or be inconsistent with the operative wording of the existing permission. This includes altering the nature or extent of the grant. The restriction is not confined to fundamental conflicts. Secondly, even without such a conflict, section 73 is subject to a wider restriction against a fundamental alteration of the permitted development.
3. The principles in Kent County Council and Bernard Wheatcroft Ltd, concerning the reduction of development applied for before permission is granted, did not govern the alteration of an existing permission under section 73.
4. The original operative wording included a substation, subsequently identified in the approved plans as a 33kV substation. The varied condition required compliance with plans which omitted that substation and therefore prohibited its construction. That was inconsistent with the operative wording and outside the power conferred by section 73.
5. Alternatively, removing the substation was a fundamental alteration. It was a central element of the original solar-farm development and remained potentially necessary for implementation of the original permission.
6. The Council also failed to have regard to the removal of the 33kV substation as a mandatory material consideration. The application and officer reports did not clearly identify the removal, and the objections were at points misunderstood as referring to the different DNO substation.
7. Relief would not in any event have been refused under section 31(2A) of the Senior Courts Act 1981. It was not highly likely that the committee would have reached the same decision had it understood that the substation was being removed.
8. The claim succeeded. The court found that the 2022 permission was ultra vires section 73 and would hear the parties on the appropriate order and consequential matters.

Not stated in the judgment.