Fiske case exposes S73 limits on planning condition changes

A Court of Appeal ruling in Test Valley Borough Council v Fiske [2024] EWCA Civ 1541 has provided significant clarification on the limitations of Section 73 of the Town and Country Planning Act 1990, which allows developers to apply for permission to vary or remove conditions associated with existing planning permissions.

Section 73 applications cannot be used to make significant changes to the original permission

Applying to vary conditions on planning permissions under S73

In 2017, Test Valley Borough Council granted planning permission for a 72-hectare solar farm, including a 33kV substation. Subsequently, the developer sought to modify the permission, leading to a 2022 application under section 73 to vary conditions of the original permission. Notably, this variation omitted the previously approved 33kV substation. The council approved this modification.

A fundamental alteration to the development? Fiske's challenge.

Local resident Chala Fiske challenged the council's decision, arguing that omission of the substation constituted a fundamental alteration to the original development. The High Court ruled in her favour, quashing the 2022 permission. The council appealed decision. The Court of Appeal upheld the High Court's decision.

Key restrictions on S73 applications

The Court of Appeal emphasised two key restrictions on the use of Section 73:

1. Consistency with Original Permission: Any new conditions imposed under Section 73 must not materially conflict with the operative part of the original planning permission. In this case, the removal of the 33kV substation was inconsistent with the original approval, which included it.

   
   

2. Fundamental Alteration: While the court acknowledged that conditions under Section 73 should not fundamentally alter the nature of the original development, it clarified that the primary test is the consistency between the new conditions and the original permission. The concept of "fundamental alteration" serves as a secondary consideration.

   
   

Implications for S73 applications

This ruling underscores the limitations of Section 73 applications, indicating that they cannot be used to make significant changes that conflict with the original planning permission. Developers seeking substantial modifications may need to submit a new full planning application under Section 70. The decision provides clearer guidance on the permissible scope of variations, ensuring that any changes remain true to the original approved development.

This case serves as a landmark decision, delineating the boundaries within which developers and planning authorities must operate when considering variations to existing planning permissions.