Test Valley Borough CounciL v Chala Fiske

A permission under section 73 of the TCPA 1990 is an independent permission for the same development as the extant permission, subject to new or amended conditions. A condition cannot conflict with, negate or remove part of the earlier operative grant. That restriction applies even where the inconsistency is less than substantial or fundamental, subject only to a genuinely trivial de minimis change.

Section 73 does not impose a separate substantial-or-fundamental-alteration test by reference to the permission read as a whole. The Wheatcroft principle concerns alterations to a proposal during the application process and does not define the vires of a section 73 permission. The Newbury tests remain necessary for conditions, but are not sufficient.

Test Valley Borough Council appealed against Morris J’s decision in the Planning Court, reported at [2023] EWHC 2221 (Admin) and [2024] PTSR 3282. The respondent, a local resident, challenged a 2022 permission granted under section 73 of the TCPA 1990 to vary conditions attached to a 2017 permission for a solar farm.

The 2017 permission included a 33kV substation. The 2022 permission omitted that substation from the approved plans and conditions, while seeking to coordinate the solar farm with a separate 2021 permission for a 132kV DNO substation. The High Court held that the 2022 permission was ultra vires and that the authority had failed to consider the omission. The central issues on appeal were whether section 73 conditions could be inconsistent with the earlier operative grant and whether a substantial or fundamental alteration test applied.

Appeal dismissed. A section 73 permission is an additional, independent permission. The original permission remains intact, and the new permission must authorise the same development, subject to different or amended conditions.

1. The statutory scheme limits the authority to considering the conditions attached to the previous permission. It does not permit the authority to alter the description or operative part of the earlier grant, whether by the wording of the new operative part or by imposing an inconsistent condition. The [2019] UKSC 33 and [2019] EWCA Civ 1868 support that construction.
2. A condition which negates or removes all or part of the operative grant is unlawful. This restriction is not confined to fundamental or substantial inconsistencies. It is consistent with the principles in Arrowcroft, Cadogan and Vue. The validity requirements for planning conditions in Newbury remain necessary, but they do not exhaust the limits of section 73. A genuinely trivial alteration may be ignored as de minimis, but the concept does not extend to incidental or ancillary development.
3. The court rejected a separate restriction based on a substantial or fundamental alteration of the permission read as a whole. Wheatcroft concerns changes to a development proposal during the process of determining a planning application. It does not govern the vires of a section 73 permission. The planning authority remains entitled to assess the planning merits of a substantial change.
4. The omission of the 33kV substation from the 2022 permission made its conditions materially inconsistent with the operative part of the 2017 permission. Grounds 1 and 2 therefore failed. Grounds 3 and 4 did not arise. Alternatively, the officer’s report did not substantially mislead the committee; but if the omission had not been considered, the decision would not have been saved under section 31(2A) of the Senior Courts Act 1981, because it could not be said that the permission would highly likely have been granted anyway.

• Court of Appeal (Civil Division): appeal dismissed. The court rejected the proposed substantial-or-fundamental-alteration restriction but held that the section 73 permission could not conflict with the earlier operative grant.
• High Court of Justice, King’s Bench Division, Planning Court: Morris J quashed the 2022 permission, holding that it was ultra vires and that the authority had failed to have regard to the omission of the 33kV substation: [2023] EWHC 2221 (Admin) .