The High Court ruled that a section 73 variation is unlawful if the proposed changes to the development are inconsistent with the operative wording of the original planning permission.
In R (on the application of Fiske) v Test Valley Borough Council [2023] EWHC 2221 (Admin); [2023] PLSCS 156, the court quashed the decision to grant planning permission because the plans of the section 73 variation under the Town and Country Planning Act 1990 did not include the substation referred to in the wording of the planning permission.
The case concerned a planning application for a solar farm. The permission was granted in 2017 with the following operative wording: “Installation of a ground-mounted solar park to include ancillary equipment, inverters, substation, perimeter fencing, CCTV cameras, access tracks and associated landscaping.”
In 2021, a separate planning permission was granted for a second substation within the area of the solar farm.
In 2022, a section 73 variation was granted varying the conditions of the 2017 permission. The effect of this variation was to remove development from the area covered by the 2021 permission, allowing the remainder of the solar farm permitted by the 2017 permission to operate in tandem with the 2021 permission.
The section 73 variation was challenged on two grounds, the main one being that the permission exceeded the powers in section 73 because the substation was omitted.
The High Court identified two restrictions to the powers in section 73 of the 1990 Act. Restriction one is that, under section 73, there is no power to introduce a condition which creates a conflict or is inconsistent with the operative wording of the original permission. Restriction two is that there should not be a fundamental alteration of the development. Importantly, restriction one is not limited to cases where the inconsistency with the operative wording is fundamental, as any conflict with the wording is sufficient to trigger this restriction.
The High Court also considered that, for evaluating the lawfulness of the exercise of the section 73 power, it is only necessary to compare the varied condition and the existing planning permission. This means that other permissions relating to the site, like the 2021 permission, are not relevant.
Regarding the cases raised by the defendant, the High Court concluded that they did not assist the defendant’s case, because: “There is a difference in principle between modifying a proposal (before permission is granted) by a condition imposed under section 70 (by cutting down or altering, as long as the change is not fundamental) and changing a condition to an existing grant under section 73.”
The High Court concluded that the section 73 variation conflicted with the operative wording of the 2017 permission and ruled that it was unlawful as it exceeded the powers in section 73 of the 1990 Act.
This case is a heads-up to developers to pay utmost attention to the wording of their planning permission before applying for any section 73 variation and to avoid any conflicts with the operative wording.
Stefano D’Ambrosio is a solicitor in the planning and environmental team at Irwin Mitchell
