In the current context of economic and political uncertainty, the ability to make changes to planning permissions is as important as ever as developers look for ways to optimise their existing consents. It’s no surprise, then, that the courts have been busy settling questions about the scope of the power in section 73 of the Town and Country Planning Act 1990 to “vary” conditions attached to permissions. The result has been a knotty line of authorities giving rise to tensions which developers and decision-makers alike have had to resolve.
The judgment of the Court of Appeal late last year in Test Valley Borough Council v Fiske [2024] EWCA Civ 1541; [2025] EGLR 1 brought some welcome clarity on the extent of the changes to planning permissions which may lawfully be made under section 73.
Some context
A planning permission comprises the part which grants consent for the development it describes – the operative part – and the conditions subject to which the permission is granted. Section 73 allows planning authorities to grant permission for the development of land without complying with conditions subject to which a previous permission was granted. Section 73 cannot be used to change the operative part of the permission – the LPA’s consideration is limited to the question of the conditions subject to which permission should be granted.
In early 2023, the High Court in Armstrong v Secretary of State for Levelling-Up, Housing and Communities and another [2023] EWHC 176 (Admin); [2023] PLSCS 21 held that, provided the development permitted by the conditions is consistent with the operative part of the permission, there is no limit on the scale of changes which may be made pursuant to section 73. Understandably, Armstrong was welcomed by practitioners, but the clarity it brought was short-lived when the High Court handed down its decision in the first instance in Fiske.
Fiske in the High Court
Permission was granted in 2017 for a solar farm development including a substation. A section 73 permission was granted in 2022 which varied the plans secured by a condition attached to the 2017 permission. The varied plans removed the substation referred to in the description of development of the 2017 permission, which granted consent “for the above development in accordance with the approved plans listed below”.
Chala Fiske applied to the High Court to quash the 2022 permission. The court held that the use of the power in section 73 was subject to two distinct restrictions. Restriction one was that a section 73 permission must not give rise to any conflict or inconsistency with the operative part of the original permission. Restriction two – which conflicted with the decision in Armstrong – was that a section 73 permission must not fundamentally alter the development permitted under the original permission. The High Court found that both restrictions had been infringed by the section 73 permission. The council appealed to the Court of Appeal, arguing that only restriction two applied.
Court of Appeal brings the strands together
Rejecting the appeal, the Court of Appeal found that restriction one applies to section 73, but that restriction two does not. Conditions cannot alter the operative part of a permission. However, provided that the conditions do not alter the operative part of the permission, it does not matter whether the section 73 permission makes fundamental or substantial alterations to the permission.
In Fiske, the section 73 permission granted consent for an altered form of development which removed the substation referred to in the description of development and shown on the approved plans referred to in that description of development. It therefore breached restriction one.
The decision is consistent with that of the High Court in Armstrong and confirms that there is no limit on the use of section 73 to make fundamental or substantial changes, provided that the conditions are consistent with the operative part of the original permission.
What does this mean for practitioners?
The Court of Appeal noted that, if parliament had wanted to prevent fundamental or substantial alterations under section 73, it would have done so in the legislation, but did not. While the wording of section 73 itself is clear, practitioners should treat with caution the planning practice guidance which is out of step with the authorities and which retains reference to “fundamental or substantial” modifications being outside of the scope of section 73.
Crucially, to benefit from the flexibility afforded by section 73, developers must ensure the underlying permission is structured so it does not impose unwanted constraints. The description of development should be carefully formulated and should not be overly prescriptive (unavoidable changes which are non-material can be addressed via section 96A). Similarly, approved drawings and documents should be referred to only in the conditions – not in the permission’s operative part – to engage section 73.
David Wood is senior associate, planning team, at Hogan Lovells International LLP