Factual and Procedural Background
The appellant, a local planning authority ("LPA"), granted a detailed planning permission in 2017 ("the 2017 permission") for a solar farm on 72 hectares of land to a developer, Company A. The permission included a 33kV substation as part of the development. A condition required approval of details relating to the substation, which was subsequently granted in 2020. In 2019, the appellant granted a s.73 permission to vary a condition to accommodate a 132kV substation for a district network operator ("DNO"), which was quashed by consent following a legal challenge by the respondent, a local resident.
In 2021, the appellant granted a full planning permission ("the 2021 permission") for a 132kV DNO substation and additional solar panels on part of the original site. Later that year, Company A applied under s.73 to vary conditions of the 2017 permission to align with the 2021 permission, omitting reference to the 33kV substation. The appellant granted this s.73 permission in 2022 ("the 2022 permission"), which the respondent challenged as ultra vires and procedurally flawed.
The High Court quashed the 2022 permission on grounds that it was ultra vires s.73 because it omitted the 33kV substation and failed to consider this omission as a mandatory material consideration. The appellant appealed this decision.
Legal Issues Presented
- Whether conditions imposed under s.73 of the Town and Country Planning Act 1990 can be inconsistent in a material way with the operative part of the original planning permission (restriction 1).
- Whether conditions under s.73 may make a "fundamental" or "substantial" alteration to the development permitted by the original permission, and if so, whether such alterations are ultra vires (restriction 2).
- Whether the appellant failed to have regard to a mandatory material consideration in omitting the 33kV substation in the 2022 permission.
- Whether the decision to grant the 2022 permission would likely have been the same had the omission of the 33kV substation been properly considered.
Arguments of the Parties
Appellant's Arguments
- The operative part of a s.73 permission cannot differ from the original permission, but the conditions may alter the development so long as the alteration is not "fundamental" or "substantial".
- Restriction (2) applies to the power to impose conditions under s.73, but restriction (1) does not.
- Relied on precedent that conditions can reduce the development permitted without amounting to a fundamental alteration.
- Criticized the High Court's interpretation for failing to recognize that conditions and the operative part are not dichotomous and that conditions can validly limit the scope of development.
- Argued that the 2021 permission for a 132kV DNO substation made the separate 33kV substation unnecessary.
- Contended that the officer's report to the planning committee adequately informed members of the omission of the 33kV substation.
- Disputed that the omission of the substation was a mandatory material consideration affecting the validity of the decision.
Respondent's Arguments
- Section 73 is subject to restriction (1), meaning conditions cannot be materially inconsistent with the operative part of the original permission.
- Restriction (2) also applies, prohibiting conditions that fundamentally alter the development permitted.
- The omission of the 33kV substation from the 2022 permission was ultra vires s.73.
- The appellant failed to consider the omission as a mandatory material consideration.
- The omission was significant and should have influenced the decision to grant the 2022 permission.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Lambeth London Borough Council v Secretary of State for Housing, Communities and Local Government [2019] UKSC 33 |
Planning permission comprises operative part and conditions; s.73 permission must not alter operative part. |
Confirmed that s.73 permissions cannot alter the operative part of an extant permission. |
| Finney v Welsh Ministers [2019] EWCA Civ 1868 |
s.73 permissions cannot differ in operative part from original permission; conditions cannot negate operative part. |
Established that conditions inconsistent with operative part are ultra vires; rejected Wheatcroft test for s.73. |
| Newbury District Council v Secretary of State for the Environment [1981] AC 578 |
Validity tests for conditions: planning purpose, reasonably related to development, not unreasonable. |
Applied to determine validity of conditions imposed under s.73. |
| R (Wright) v Forest of Dean District Council [2019] UKSC 53 |
Tests for lawful conditions on planning permissions. |
Reinforced Newbury principles as applicable to conditions under s.73. |
| DB Symmetry Limited v Swindon Borough Council [2022] UKSC 33 |
Further clarification of conditions' validity under planning law. |
Supported principle that conditions must be lawful and consistent with operative part. |
| Bernard Wheatcroft Limited v Secretary of State for the Environment (1982) P & CR 233 |
A condition may reduce the development applied for if not a "substantial alteration". |
Held not applicable to s.73 permissions; concerns procedural alterations, not substantive rights. |
| R v Coventry City Council ex parte Arrowcroft Group Plc [2001] PLCR 7 |
Conditions cannot negate or conflict with operative part; fundamental alteration test for s.73. |
Supported restriction (1); conditions inconsistent with operative part are unlawful. |
| Cadogan v Secretary of State for the Environment (1992) 65 P & CR 410 |
Conditions cannot alter extent or nature of development permitted. |
Confirmed that conditions must align with operative grant; cited to reject appellant's broader condition power. |
| R (Suliman) v Bournemouth, Christchurch and Poole Council [2022] EWHC 1196 |
Condition conflicting with description of permitted development is unlawful and unreasonable. |
Applied to demonstrate unlawfulness of conditions negating operative part. |
| Kevin Stevens t/a KCS Asset Management v Blaenau Gwent County Council [2015] EWHC 1606 |
Clarification on interpretation of permissions and conditions. |
Distinguished as decision related to s.70 permission, not s.73. |
| Kent County Council v Kingsway Investments (Kent) Limited [1971] AC 72 |
Severance of unlawful conditions may save the decision. |
Referenced regarding severability of inconsistent conditions. |
| R (Mansell) v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314 |
Principles on court intervention relating to officer reports and material considerations. |
Applied to assess adequacy of officer's report to planning committee. |
| R v Selby District Council ex parte Oxton Farms [2017] PTSR 1103 |
Criticisms of officer reports require significant misleading of committee. |
Used to evaluate alleged procedural failings in consideration of s.73 application. |
| R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2020] EWCA Civ 1010 |
Standard of review for factual findings and procedural fairness. |
Applied to uphold High Court conclusions on technical planning matters. |
| Pioneer Aggregates Limited v Secretary of State for the Environment [1985] AC 132 |
Statutory interpretation principles in planning law. |
Guided interpretation of TCPA 1990 provisions. |
| Barton Park Estates Limited v Secretary of State for Housing, Communities and Local Government [2022] EWCA Civ 833 |
Planning permission must be interpreted as a whole, including conditions. |
Distinguished as not addressing s.73 scope; used to clarify interpretation context. |
Court's Reasoning and Analysis
The court began by restating the statutory framework of s.73 TCPA 1990, which allows a LPA to grant a new planning permission varying the conditions of an existing permission but not altering the operative part. The court emphasized that the operative part and conditions together define the permission, but s.73 limits the authority to consider only conditions, preserving the original operative grant.
The appellant's argument that conditions under s.73 may materially alter the development permitted, provided the alteration is not "fundamental" or "substantial", was examined and rejected. The court distinguished the Wheatcroft principle, which concerns procedural matters in planning applications, from the substantive limits of s.73. Wheatcroft allows conditions to reduce development where not substantial but does not govern s.73 permissions.
Key case law, notably Arrowcroft and Finney, was analyzed. Arrowcroft established that a condition cannot negate or conflict with the operative part of a permission; such conditions are ultra vires. Finney confirmed that s.73 permissions cannot alter the operative part and that conditions inconsistent with it are unlawful. The court agreed with the Court of Appeal in Finney that restriction (1) applies: conditions must not be materially inconsistent with the operative part.
The court rejected the existence of a separate restriction (2) limiting conditions to non-fundamental or non-substantial alterations. The statutory language does not impose such a limitation. Parliament provided other mechanisms (s.96A, s.73B) for non-material or not substantially different changes, indicating that s.73 is not so restricted.
The court found that the 2022 permission's conditions excluded the 33kV substation included in the operative part of the 2017 permission, thereby creating a material inconsistency and breaching restriction (1). The appellant's attempt to circumvent this by using conditions to exclude the substation was impermissible.
Regarding procedural fairness, the court held that the officer's report sufficiently informed the planning committee of the omission of the 33kV substation, and members had access to relevant documents. However, even if the omission was not properly considered, the decision to grant the 2022 permission would likely not have been upheld, supporting the High Court's conclusion under s.31(2A) of the Senior Courts Act 1981.
The court dismissed the appellant's grounds challenging the High Court's findings on ultra vires and material consideration grounds but noted that grounds concerning procedural failings and the likelihood of a different decision if the omission had been considered properly were not determinative.
Holding and Implications
The appeal is dismissed.
The court held that the power under s.73 to impose conditions on a new planning permission is strictly limited by restriction (1): conditions must not be materially inconsistent with the operative part of the original permission. The power is not subject to an additional restriction preventing "fundamental" or "substantial" alterations via conditions, beyond this. The 2022 permission was ultra vires because it excluded the 33kV substation included in the original operative part.
The decision reinforces the principle that s.73 permissions cannot alter the substantive rights granted by the operative part of an earlier permission, ensuring legal certainty and protection of development rights. The ruling clarifies the limits of s.73 and distinguishes it from other statutory provisions governing amendments to planning permissions.
No new precedent beyond the clarification of the limits on conditions under s.73 is established. The direct effect is to uphold the quashing of the 2022 permission and affirm the necessity for LPAs to respect the operative part of original permissions when granting s.73 variations.