Introduction
Section 73 of the TCPA is a power to amend or vary conditions. However, in the absence of any explicit power in the TCPA to materially amend planning permissions (the power in section 96A being only for non-material amendments), section 73 is often used in practice to materially amend consented schemes. Perhaps unsurprisingly in view of this, there is also an ever-growing body of case law concerning the use of section 73.
The Court of Appeal's judgment in Test Valley Borough Council v Fiske [1] effectively reconciles two potentially conflicting lines of case law that had been developing around the scope of section 73 – in particular, Finney v Welsh Ministers [2] and Armstrong v Secretary of State for Levelling Up Housing & Communities [3]. In summary, it confirms that there is no legal limitation on the use of section 73 to fundamentally alter the proposed development by amending conditions (as per Armstrong), provided that there is no inconsistency with the operative part of the original permission (as per Finney) in terms of either the description of development changing and/or the amended conditions being inconsistent with the description of development.
The key details and practical implications of the judgment are considered below.
Key details
Fiske concerns a solar farm development which, given the two sets of judicial review proceedings that the Court of Appeal has now considered, it is fair to say has proven contentious since the original grant of planning permission in 2017.
Without going into the detail of the planning history (which includes the planning permission the subject of the previous proceedings), the section 73 permission the subject of these proceedings varied the approved plans the subject of one of the conditions on the original permission. The varied plans omitted a substation explicitly referred to in the description of development in the original planning permission, which granted planning permission "for the above development in accordance with the approved plans below".
The case considered the scope of the power in section 73 and whether conditions fall outside the scope of section 73 if they fall into either of the following categories:
(1) They are inconsistent in a material way with the operative part of the original permission.
(2) They make a fundamental alteration of the development permitted by the original permission.
The Court of Appeal dismissed the Appellant's case, holding that the restriction in (1) applies to section 73, but not (2). The rationale for this was as follows:
- The starting point for any consideration of the scope of section 73 is the legislation (i.e. section 73 itself), not other case law.
- Section 73 does not include any fundamental alteration limitation. This is in line with Armstrong.
- However, as per Finney, section 73 cannot be used to change the description of development or impose conditions which would be inconsistent with that. This is because section 73 is only a power to vary conditions on an existing permission, not the operative part of the permission (which the Court defined as the description of development).
Here the section 73 permission authorised an amended version of the development which omitted the substation referred to in the description of development and shown in the approved plans forming part of that description on the original planning permission. As such, it fell foul of (1) above.
Practical implications
As a preliminary observation, it should be noted that the Court of Appeal's judgment in Fiske aligns with the Government's view of section 73 in existing planning guidance, 'Flexible options for planning permissions'. Last updated in July 2023, this guidance advises that section 73 can be used to make material amendments "but the change must only relate to conditions and not to the operative part of the permission".
In view of this, does the Court of Appeal's judgment have any practical implications?
Well, aside from being a reminder that section 73 cannot be used to change the description of development, the key practical point probably lies in the form of permission under consideration in the case. The Court of Appeal's judgment effectively shines a spotlight on some of the standard wording/practice commonly adopted by local planning authorities when granting planning permission – specifically the inclusion of wording in the description or front end of a planning permission which refers to the application drawings or documents. It is clear that wording of this nature risks limiting the ability to use section 73 to lawfully amend the scheme in the future.
It should be noted that the Court of Appeal's judgment does allow for the possibility of "de minimis alterations" of the operative part of a permission via section 73. However, since the Court defined these as "trifling matters which are ignored by the law", it is difficult to see that this concept really adds much.
Accordingly, in order to leave open the possibility of being able to make future use of section 73 to vary a scheme, it is advisable when securing planning permission to ensure that:
- the description of development is not overly detailed/specific; and
- the form of consent only references the application drawings/documents in the conditions, rather than including them in the operative part of the consent.
In particular, the inclusion of wording like "in accordance with the application" or lists of application drawings/documents as part of the description/front end of the permission needs to be avoided.
Section 73B and the future of section 73
Of course, all of this should become less of an issue if/when section 73B is brought into effect in England.
At the time of writing the Government's intentions in this regard are unclear. However, if section 73B is brought into effect (and given the Government's planning reform agenda it would be odd if it wasn't), it will allow material variations to existing planning permissions.
In other words, once section 73B is in force, the powers in the TCPA to amend an existing consented scheme will no longer be limited to just non-material amendments via section 96A. In which case, will that be the end to the current practice of using section 73 to substantively vary schemes?
The answer to this probably lies in section 73B itself. The new power is subject to the following limitation: Planning permission may only be granted if the local planning authority is satisfied that its effect will not be substantially different from that of the existing permission.
Given this limitation, section 73 is likely to still have a role to play as a means to authorise changes to an existing consented scheme outside the scope of either sections 96A or 73B. This is particularly now that Fiske has confirmed that section 73 does not include any fundamental alteration limitation. Whilst the challenge in these circumstances will be ensuring that the description of development in the original permission is not changed/made inconsistent by the varied conditions, there are also potential advantages to pursuing a section 73 application over an application for a new planning permission. (For example, section 73 permissions where either the original permission was granted or the application for the original permission was made before 12 February 2024 are not subject to mandatory biodiversity net gain in England).
In light of this, it seems unlikely that the current practice of using section 73 to materially amend schemes will automatically stop with the introduction of section 73B, albeit one would expect such use to naturally reduce as the use of section 73B becomes established. However, as Fiske shows, in order to be able to retain the possibility of using section 73 for this purpose, it is necessary to ensure that the original form of planning permission does not include either an overly detailed description of development and/or references to application drawings/documents in the operative part of the permission.
Footnotes
[1] [2024] EWCA Civ 1541
[2] [2019] EWCA Civ 1868
[3] [2023] EWHC 176 (Admin)
