Clarifying the Scope of Section 73 of TCPA 1990: Conditions Must Not Conflict with Existing Permissions

Introduction

The case of Test Valley Borough Council v Fiske ([2024] EWCA Civ 1541) before the England and Wales Court of Appeal (Civil Division) delves into the intricacies of Section 73 of the Town and County Planning Act 1990 ("TCPA 1990"). This jurisdictional dispute centers on whether a local planning authority (LPA) can impose new conditions through a Section 73 application that materially conflict with the operative part of an existing planning permission. The appellant, Test Valley Borough Council, sought to amend the conditions of a previously granted planning permission for a solar farm, while the respondent, Mrs. Chala Fiske, challenged the legality of these new conditions, arguing they were ultra vires, i.e., beyond the authority's legal power.

Summary of the Judgment

The Court of Appeal confirmed the High Court's decision, reinforcing that under Section 73 of the TCPA 1990, while the LPA can vary or remove conditions of an existing planning permission, it cannot alter the operative part of that permission. Specifically, the court held that any new conditions imposed must not materially conflict with the substantive development rights granted by the original permission. In this case, the appellant's attempt to exclude a previously permitted 33kV substation through new conditions was deemed inconsistent with Section 73's limitations, leading to the upholding of the High Court's decision to quash the appellant's permission.

Analysis

Precedents Cited

The judgment extensively references several key cases that have shaped the interpretation of Section 73:

• Finney v Welsh Ministers [2019] EWCA Civ 1868: Established that the operative part of a Section 73 permission cannot differ from the operative part of an existing permission.
• Arrowcroft v Secretary of State for the Environment (1982) P & CR 233: Introduced the principle that conditions may adjust but not fundamentally alter the original development.
• Wheatcroft Limited v Secretary of State for the Environment (1982) P & CR 233: Clarified that granting permission for less development than applied for is permissible provided it doesn't constitute a substantial alteration.
• Cadogan v Secretary of State for the Environment (1992) 65 P & CR 410: Affirmed that conditions cannot alter the nature or extent of development consented by the operative part.
• R (Vue Entertainment Limited) v City of York Council [2017] EWHC 588 (Admin): Demonstrated lawful variation of conditions that did not conflict with the operative part.

These precedents collectively underscore that while conditions can regulate the manner of development, they cannot negate or significantly modify the substantive aspects authorized by the original planning permission.

Legal Reasoning

The core legal debate revolved around whether Section 73 permits LPAs to impose conditions that materially restrict or alter the original development consented by the operative part of a planning permission. The appellant argued for a "substantial alteration" test, suggesting that as long as alterations are not "fundamental," they fall within the LPA's authority under Section 73.

However, the Court of Appeal, aligning with prior judgments like Finney and Arrowcroft, determined that Section 73 is subject to a singular, stringent restriction: conditions must not materially conflict with the operative part of the existing permission. The court emphasized that any condition imposed under Section 73 must be in harmony with the substantive rights granted by the operative part of the previous permission, rejecting the notion of an additional "substantial alteration" test.

The appellant's attempt to exclude the 33kV substation through a new condition was found to breach this principle, as it introduced a material inconsistency with the original permission, rendering the new permission ultra vires.

Impact

This judgment significantly clarifies the boundaries of Section 73, reinforcing that while LPAs have the authority to modify conditions of existing permissions, this power is not a carte blanche to alter substantive development rights. Future applications under Section 73 must ensure that any new conditions do not materially conflict with the operative parts of existing permissions. This decision upholds the protection of substantive development rights and limits the scope of administrative discretion, providing greater certainty for developers and LPAs alike.

Complex Concepts Simplified

Conclusion

The Court of Appeal's decision in Test Valley Borough Council v Fiske reinforces the principle that Section 73 of the TCPA 1990 is strictly confined to modifying conditions without altering the core permissions granted by the operative part of existing planning permissions. By dismissing the appellant's arguments that Section 73 is subject to both restriction (1) and restriction (2), the court has narrowed the scope of permissible modifications, ensuring that substantive development rights remain protected against material inconsistencies introduced through condition variations. This judgment provides a clear precedent for future cases, emphasizing the importance of maintaining coherence between the operative parts of planning permissions and their associated conditions.

Stakeholders in the planning process must heed this clarification to avoid ultra vires challenges, ensuring that any condition alterations remain within the legal boundaries established by Section 73 and supported by prevailing case law.