Chala Fiske, R (on the application of) v Test Valley Borough Council

Section 70 TCPA provides as follows:

“70.— Determination of applications: general considerations.

(1)

Where an application is made to a local planning authority for planning permission—

(a)

subject to section 62D(5) and sections 91 and 92, they may grant planning permission, either unconditionally or subject to such conditions as they think fit; or

(b)

they may refuse planning permission.

…

(2)

In dealing with an application for planning permission or permission in principle the authority shall have regard to—

(a)

the provisions of the development plan, so far as material to the application,

…”

Section 72 (1) provides that “without prejudice to the generality of section 70 (1), conditions may be imposed on the grant of planning permission under that section”.

Section 73 TCPA provides, inter alia, as follows:

“73.

Determination of applications to develop land without compliance with conditions previously attached.

(1)

This section applies, subject to subsection (4), to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted.

(2)

On such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted, and—

(a)

if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly, and

(b)

if they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application.

…” (emphasis added)

Section 96A TCPA provides as follows:

“96A Power to make non-material changes to planning permission or permission in principle

(1)

A local planning authority may make a change to any planning permission, or any permission in principle (granted following an application to the authority), relating to land in their area if they are satisfied that the change is not material.

(2)

In deciding whether a change is material, a local planning authority must have regard to the effect of the change, together with any previous changes made under this section, on the planning permission or permission in principle as originally granted.

(3)

The power conferred by subsection (1) includes power to make a change to a planning permission —

(a)

to impose new conditions;

(b)

to remove or alter existing conditions.

…”

The Town and Country Planning (Development Management Procedure) (England) Order 2015 makes provision for certain procedural requirements which apply to applications for planning permission, for example, provision for consultation, plans, design and access statements and fire safety statements. However the Order makes clear that, in relation to the specific case of an application under section 73 TCPA, many of these requirements either do not apply or are less onerous: see, for example, Articles 3(2), 7(1)(c), 9(4), 9(6)(d) and 20.

The National Planning Practice Guidance (in its most recently amended form) (“NPPG”), provides, inter alia, at §§013 to 015 as follows:

“How are the conditions attached to a planning permission amended?

In contrast to section 96A, an application made under section 73 of the Town and Country Planning Act 1990 can be used to make a material amendment by varying or removing conditions associated with a planning permission. There is no statutory limit on the degree of change permissible to conditions under s73, but the change must only relate to conditions and not to the operative part of the permission.

Provisions relating to statutory consultation and publicity do not apply. However, local planning authorities have discretion to consider whether the scale or nature of the change warrants consultation, in which case the authority can choose how to inform interested parties.

“Are there any restrictions on what section 73 can be used for?

Planning permission cannot be granted under section 73 to extend the time limit within which a development must be started or an application for approval of reserved matters must be made. Section 73 cannot be used to change the description of the development.

…

What is the effect of a grant of permission under section 73?

Permission granted under section 73 takes effect as a new, independent permission to carry out the same development as previously permitted subject to new or amended conditions. The new permission sits alongside the original permission, which remains intact and unamended. It is open to the applicant to decide whether to implement the new permission or the one originally granted.

A decision notice describing the new permission should clearly express that it is made under section 73. It should set out all of the conditions imposed on the new permission, and, for the purpose of clarity restate the conditions imposed on earlier permissions that continue to have effect. Further information about conditions can be found in the guidance for use of planning conditions.

As a section 73 application cannot be used to vary the time limit for implementation, this condition must remain unchanged from the original permission. If the original permission was subject to a planning obligation then this may need to be the subject of a deed of variation.”

(emphasis added)

In this section I set out (in chronological order) the relevant case law, both cases dealing specifically with section 73 TCPA and other cases relied upon by the parties as relevant to the section 73 issues in the present case. The key cases on section 73 itself are Arrowcroft, Vue Entertainment and Finney. These have been further discussed in two recent cases: Reid and Armstrong. (Citations for these cases are set out below).

An oil company applied for planning permission to construct an oil refinery, which included an access road. The Secretary of State ultimately decided to grant permission for the refinery, whilst refusing permission for construction of the access road, and subject to a condition that no deliveries should be made except by sea, pipeline or rail transport. The local authority applied to quash the decision on the basis that the Secretary of State had acted “ultra vires in purporting to grant planning permission for part only of the development the subject of the application” and further contended that the condition imposed was invalid because it was unworkable and because it “took away a substantial part of the benefit of the planning permission”. Sir Douglas Frank QC sitting as a deputy judge dismissed the application.

On the first ground, the judge held (p76) that on the true construction of section 29 of the 1971 Act “the determining authority can grant as much of the development applied for as they think should be permitted”, subject to the applicant’s consent. He added that it is common practice to do this “for example, where permission for 50 houses is applied for and the local authority grants permission for 40” (emphasis added). There should be formal amendment to “the application”. The judge continued (at pp 76-77):

“… I agree with Mr Widdecombe that where an application consists of a number of separate and divisible elements it is lawful for them to be separately dealt with, as was done in this case. It seems to me to matter not in this case whether the decision of the first respondent was on an amended application or whether it was a part refusal, save that in the latter case it is necessary to construe the word “or” conjunctively”

The judge addressed the further ground (ground 3) in the following terms (at p79):

“ …. In my judgment there are short answers to these two points. First, if the second respondents carried out deliveries by road (say, as stated in the condition) then they would be liable to enforcement procedure under the Act. … . As to the second point, a conditional permission is almost invariably less beneficial than an unconditional permission. It must always be a question of fact and degree whether a particular condition is such as to take away the substance of the permission, in which event that condition may be invalid. In this case, however, the development sought is the construction of an oil refinery and all else is ancillary to that purpose. Of course, if the condition had been such as to render the oil refinery unworkable that would be a different case, but the second respondents’ acceptance of the condition is evidence that it is certainly not this case.”

(emphasis added)

An application for planning permission for a housing development comprising approximately 420 dwellings on 35 acres was found unacceptable on appeal, but the inspector found that a reduced number of dwellings on 25 acres (a proposal put forward by the applicant in the course of the appeal) would have been acceptable. The Secretary State however declined to grant planning permission for part of the site or a lesser number of houses because the development was not severable. Forbes J quashed the Secretary of State’s decision. At pp236-237, he framed the question in the case as whether the Secretary of State had power to grant planning permission for a smaller development “than [was] indicated on the application form originally submitted” (emphasis added). At p 239 he stated:

“ … the question here is whether it is permissible to grant a planning permission subject to a condition that only what I may call “a reduced development” is carried out. Both counsel, I think, accept that it is permissible to grant planning permission subject to such a condition; both, I think, would seek to limit such conditions to those that do not alter the substance of the application; … . The broad proposition therefore… is that a condition the effect of which is to allow the development but which amounts to a reduction of that proposed in the application can legitimately be imposed so long as it does not alter the substance of the development for which permission was applied for…” (emphasisadded)

The italicised words above are what has been referred to as “the Wheatcroft principle”.

Forbes J went on to state his view that this test of substantial difference is not the same thing as the test of severability, adding that “the proposition that conditions can only be used to reduce the development below that proposed in the application where the application is severable is derived from [the] decision … in Kent County Council….” (emphasis added). After setting out part of the judgment in Kent, he continued:

“For my part, I cannot accept that the proper test is whether the development proposed in the application was severable or not. Unless coupled with a requirement that the result must not be substantially different from the development applied for, it would be possible, as I have just indicated, for local planning authorities to grant planning permission for developments that were in fact substantially different and thus defeat the consultative objects of Part III of the Act of 1971. The severability test, therefore, could only be a proper one if combined with a test of substantial difference. I can, however, see no justification for the severability test at all. … Why should it be impossible for the local planning authority to say, on an application for outline planning permission: " we think 35 acres is too much but 25 will be all right," and similarly with a reduction in density? So long as the reduction passes the test of not altering the substance of the application, what vice is there in that? … “ (emphasis added)

After rejecting a test of severability in favour of a test of substantial difference, Forbes J continued:

“I conclude, for my part, that there is no principle of law that prevents the Secretary of State from imposing conditions that have the effect of reducing the permitted development below the development applied for except where the application is severable. The Secretary of State clearly directed himself that there was such a principle and thus fell into error, and his decision must be quashed.

I should add a rider. The true test is, I feel sure, that accepted by both counsel: is the effect of the conditional planning permission to allow development that is in substance not that which was applied for? Of course, in deciding whether or not there is a substantial difference the local planning authority or the Secretary of State will be exercising a judgment, and a judgment with which the courts will not ordinarily interfere unless it is manifestly unreasonably exercised. The main, but not the only, criterion on which that judgment should be exercised is whether the development is so changed that to grant it would be to deprive those who should have been consulted on the changed development of the opportunity of such consultation, and I use these words to cover all the matters of this kind with which Part III of the Act of 1971 deals.” (emphasis added)

Throughout the rest of the judgment, Forbes J makes clear that he was considering the effect of any condition upon the development applied for (or proposed); he was not considering the relationship between a condition and the development for which permission has been granted.

Pioneer Aggregates applied for planning permission to extract sand and gravel from 90.5 ha of land. The application described the proposal for restoration of the land as “Agriculture/nature reserve. Progressive restoration using on-site materials” (emphasis added) and provided for the creation of two lakes. A guidance note required the applicant to demonstrate that the site could be reclaimed satisfactorily. On appeal, the Secretary of State granted permission subject to conditions, one of which provided that “if the sufficiency of the water supply for the proposed lakes cannot be demonstrated to the satisfaction of the mineral planning authority, then an alternative restoration scheme shall be submitted to and agreed by the mineral planning authority.” The judge at first instance dismissed the tenant farmer’s application to quash the Secretary of State’s decision. The Court of Appeal allowed a further appeal. However it rejected the farmer’s first contention that the Secretary of State had no power to impose the condition in relation to the restoration after use of the land because it offended against the principle that a condition on a planning permission would not be valid if it altered the extent or nature of the development permitted.

Glidewell LJ, after setting out the terms of the condition, stated (at p413):

“It is established law that a condition on a planning permission will not be valid if it alters the extent or indeed the nature of the development permitted. The permission granted by the Secretary of State in his letter specifically said that it was granted “in accordance with the application… Dated December 11, 1987… And the attached plan.” …”

Mr Taylor [for the appellant] submits that [the condition]… offends against the first principle to which I have referred above. The suggestion is that if, after Pioneer Aggregates had carried out the tests referred to in the condition, they could not demonstrate that the supply of water would be sufficient to enable the lakes to be restored and used as intended, then the condition left it open for an alternative scheme of restoration to be proposed and agreed by the county council. Such a scheme might well not be in accordance with the detailed provisions of the application and the accompanying plan, and thus might well alter the extent or nature of the development permitted. In particular, such a scheme of restoration might involve the importation of material from outside the site, which would be wholly contrary to the provisions of the application.” (emphasis added)

This argument was rejected at first instance and Glidewell LJ in turn rejected the appellant’s criticism of the first instance judge’s reasoning, stating:

“The condition is part of a clearly worded permission, which specifically refers to the application and the attached plan. If an alternative restoration scheme were submitted which was not within the ambit of the application and the attached plan, then I agree with the judge that it would not be a scheme which fell within the meaning of [the] condition…. In particular, … the application specifically said that the scheme of restoration would be carried out “using on-site materials”. It must follow that any scheme of restoration which involve the importation of material from outside the site would be outside the scope of the application and thus of the permission and would not be a scheme to which the mineral planning authority could validly agree as being within [the] condition… (even if they so wished)”. (emphasis added)

This case directly concerns the power under section 73. The local authority granted outline planning consent for a 40,000 seat arena, food superstore, variety superstore and associated small retail service and community uses. Under the description of development, the notice of permission stated, so far as relevant:

“40,000 seat multipurpose arena, 1 food superstore & 1 variety superstore with associated small retail, service and community units ….” (emphasis added)

The identity of the operator of the proposed food superstore changed and the operator wished to sell a higher than usual proportion of non-food goods. Further changes were also proposed including the replacement of the variety superstore with up to 6 non-food comparison goods stores. The developer applied under section 73 to vary the conditions in the planning permission such that, inter alia, there was to be up to six non-food variety stores, in place of the one variety superstore. The authority granted the permission under section 73 subject to a section 106 agreement. On application for judicial review, Sullivan J declared the decision to be ultra vires. Section 73 did not enable the authority to grant permission for “one variety superstore” subject to a condition that the building erected should in fact comprise “non-food variety stores… not exceeding six in number”. The local authority had no power under section 73 to vary the conditions in that way.

At §§27 and 28, Sullivan J set out the argument of the interested parties:

“27.

Mr Katkowski submits that on the facts here it is the conditions which fix the details of what is permitted and that in the event of any conflict with the "operative" part of the planning permission those conditions should prevail. The council is entitled to alter the conditions under section 73 even if that results in an altered planning permission for more than one variety store. The purpose of section 73 is to enable a materially different planning permission to be granted by the imposition of different conditions.

28.

He submits that the approach which is set out in paragraph 72.06 of the Encyclopaedia of Planning Law is not applicable. It deals with conditions which seek to alter the character of the development applied for. Here there is no doubt that the section 73 application sought permission for a number of comparison retail units in substitution for the one variety store that had been permitted in 1999.” (emphasis added)

From §29 onwards, Sullivan J then set out his conclusions:

“29.

Notwithstanding Mr Katkowski's submissions, I consider the approach in paragraph 72.06 of the Encyclopaedia is a useful starting point. It is as follows, so far as material:

A condition may have the effect of modifying the development proposed by the application provided that it does not constitute a fundamental alteration in the proposal."

30.

A number of cases are then cited in which it was decided that various conditions requiring, for example, off-street car parking, suitable visibility displays or deleting a proposed means of access, had not constituted fundamental alterations in the proposals that were being placed before the planning authority. The passage continues:

"Similarly, a condition may scale down the applicant's proposals and permission may be granted in a suitable case for part only of the development for which approval is sought or in respect of part only of the land to which the application relates."

31.

Authorities are cited for those propositions.

32.

Thus, in response to the application in 1998 it was entirely proper for the local planning authority to impose conditions, for example, limiting the size of the variety store, providing that it should not open until the unit shops had been substantially completed and preventing its later subdivision. It would not, in my judgment, have been lawful for the local planning authority to have imposed in response to an application for planning permission for, inter alia, "one variety store" a condition which said:

"The buildings to be erected shall comprise up to six non-food variety stores comprising a range of non-food Al retail units."

33.

Faced with the imposition of such a condition there can be little doubt that Marks & Spencer would have replied to the local planning authority: "Whilst you have purported to grant planning permission for one variety store the condition negates the effect of that permission. You may not lawfully grant planning permission with one hand and effectively refuse planning permission for that development with the other by imposing such an inconsistent condition." If that was the extent of the council's powers in response to the application in 1998, as in my judgment it was, I do not see how the council can claim to be entitled to impose such a fundamentally inconsistent condition under section 73. It is true that the outcome of a successful application under section 73 is a fresh planning permission, but in deciding whether or not to grant that fresh planning permission the local planning authority,

" ... shall consider only the question of the conditions subject to which planning permission should be granted." (See section 73(1) and Powergen above.)

Thus the council is able to impose different conditions upon a new planning permission, but only if they are conditions which the council could lawfully have imposed upon the original planning permission in the sense that they do not amount to a fundamental alteration of the proposal put forward in the original application. I bear in mind that the variety superstore was but one element of a very large mixed use scheme, nevertheless it is plain on the evidence that it was an important element in the mix and this is reflected in the retail implications of its removal.

…

35.

Whatever the planning merits of this new proposal, which can, of course, be incorporated into a new "full" application, I am satisfied that the council had no power under section 73 to vary the conditions in the manner set out above. The variation has the effect that the "operative" part of the new planning permission gives permission for one variety super-store on the one hand, but the new planning permission by the revised conditions takes away that consent with the other.”

(emphasis added)

As set out further below, the parties place different interpretations on the foregoing passages. In the present case, the Claimant submits that these passages establish two distinct restrictions on the power in section 73: §35 is “restriction 1”, and §33 is “restriction 2” (see paragraph 106 below). The Defendant submits that Arrowcroft establishes only one single restriction, namely restriction 2 (“fundamental alteration”) (see paragraphs 113(4) and 115 below).

The defendant local authority granted planning permission for a solar park. The planning permission was granted in the following terms:

“The provision of photovoltaic solar park (14 M W) comprising of 53,955 photovoltaic solar panels over 28.6 HE of agricultural land and ancillary infrastructure to include, 1 substation, 11 inverter stations, pole mounted security cameras, security fencing, creation of an all-weather access route for maintenance, excavation of a cable trench to the south for grid connection and landscaping at Hafod Y Dafal Farm, Aberbeeg …”

(emphasis added).

However Condition 20 to the permission stated that “the southern cabling route from the main site to Aberbeeg does not form part of this planning permission”. The claimant had an interest in adjoining land and alleged that the decision was unlawful, contending, inter alia, that the planning permission was unclear and Wednesbury unreasonable on its face, as it did not grant planning permission for the excavation of the cabling trench route to the south.

In her judgment, at §§23 and following, Patterson J set out a number of legal principles; including (1) a condition may remove an element of the proposed development such as a proposed means of access (citing Kent County Council, supra) and (2) it is well established that planning permission may be granted for a smaller development or for less development than was applied for (citing Wheatcroft, supra). At §36 she summarised the claimant’s argument as follows

“36.

The claimant contends that the planning permission is confusing because it recites as part of the development permitted: “excavation of a cable trench to the south for grid connection and landscaping at Hafod Y Dafal Farm, Aberbeeg.” However, condition 20 removes all reference to the excavation of a cable trench to the south. Although the defendant refers to the existence of the existing forestry track it is not encompassed by the words of the planning permission. On the one hand, planning permission is to be read as granting planning permission for grid excavation operational works but then that is taken away as a result of condition 20. The effect of that could be to prevent the planning permission from being implemented.”

Patterson J rejected this argument in the following terms:

“41.

In my judgment, there is nothing unusual or unlawful about the defendant’s way of proceeding or its grant of planning permission. The wording of the permission is clear, but it has to be read in conjunction with the conditions attached to it. Condition 20 expressly removes the southern cabling route from the main site to Aberbeeg. There is nothing ambiguous in the language used. It is clear and not confusing. Using conventional principles of construing a planning permission a planning consent was granted for the photovoltaic park, as applied for, but without the southern track which was removed from the planning permission. The reason why that was done is clearly set out in the reason for condition 20 so that a reasonable reader is left in no doubt as to what has happened and why”

It appears that neither Cadogan nor Arrowcroft were cited.

The issue in this case was procedural fairness and the circumstances in which it is necessary to re-consult where there is a substantial alteration to the proposed development. Nevertheless in the course of his judgment, John Howell QC sitting as a deputy High Court Judge made observations on the substantive constraints on the part of a local planning authority to grant planning permission for a development other than that for which an application was originally made. The judge held that the question whether reconsultation was required in the event of a change to a proposal consulted on depended on what fairness required. At §§63 to 85, the judge addressed the circumstances in which planning permission may be granted for a development other than that for which an application was initially made and the test which the court should apply when reviewing the legality of the grant of such a permission. At §64, he identified three ways in which a planning permission may be granted for such a development: first, the initial application may itself be amended; secondly, permission may be granted only for part of the development applied for; and thirdly, permission may be granted subject to a condition that modifies the development applied for. Addressing the second and third of those possibilities, the judge stated as follows:

“66.

A planning authority also has power to grant planning permission for part of the development applied for under section 70(1)(a) of the 1990 Act and to refuse permission for another part under section 70(1)(b) where such parts are separate and divisible: see section 70(1) …; and Kent County Council … . In such a case the development for which permission is granted is the same as that in part of the application but there remains a question (apart from one about consultation about such a partial grant) whether the permission would be for a development that would be substantially or significantly different in its context from that which the application envisaged: cf Bernard Wheatcroft Ltd … at 240; and Johnson v Secretary of State for Communities and Local Government [2007] EWHC 1839(Admin) at [25].

67.

A local planning authority also has power to grant planning permission on an application subject to conditions: see section 70(1)(a) of the 1990 Act …. Such a condition may have the effect of modifying the development applied for, whether by limiting or enlarging it or by changing its nature to some extent. The so-called Wheatcroft principle is that the result of imposing such a condition must not be a development which in substance is not that which was applied for: see … Wheatcroft … 240-241. Thus on an application for planning permission without complying with conditions subject to which a previous planning permission is granted under section 73 of the 1990 Act, the authority may impose different conditions but only if they are conditions which could lawfully have been imposed on the original planning permission in the sense that they do not amount to a fundamental alteration of the proposal put forward in the original application: see … Arrowcroft Group … paras 29 and 33, per Sullivan LJ; and R (Wet Finishing Works Ltd) v Taunton Deane District Council [2018] PTSR 26, paras 42 and 45-48, per Singh J.

68.

These cases on section 73 of the 1990 Act illustrate the substantive limitation on the extent to which planning permission may be granted other than for the development for which the application for planning permission was initially made. The limitation applies even though applications for planning permission under that section require notification and publicity: see paras 10, 15 and 16 above.”

I note that, at §67, (1) the judge appears to suggest that the decision on section 73 in Arrowcroft is an application of the Wheatcroft principle and (2) he cites, with approval, the decision of Singh J in Wet Finishing Works (to which reference is made in the next case).

This decision is at the heart of the present case. The local planning authority granted planning permission for development described as the “installation and 25-year operation of two wind turbines, with a tip height of up to 100 m and associated infrastructure” (emphasis added). One of the conditions of the permission was that the development be carried out in accordance with certain plans and documents, one of which specified a wind turbine with a tip height of 100 m.

The developer applied under section 73 to vary that condition so as to permit tip heights for the turbines of up to 125 m. On appeal the inspector granted planning permission for “installation and 25-year operation of two wind turbines and associated infrastructure”, subject to new conditions including that the wind turbine have a tip height of 125 m. In the inspector’s description of the permitted development the words “with a tip height of up to 100 m” contained in the original grant had been excised (as expressly pointed out by Lewison LJ in his judgment at §9).

The claimant sought to quash the decision, contending that the inspector had no power to grant planning permission for development which was not covered by the description of the development in the body of the original planning permission; the only power under section 73 being to vary the conditions attached to the development as described. At first instance the judge refused the application. The Court of Appeal allowed the claimant’s appeal. Lewison LJ gave the leading judgment.

At §§13 and 14, Lewison LJ referred to the case law on the origin and purpose of section 73, and in particular Pye v, the Secretary of State for the Environment, Transport and the Regions [1998] 3 PLR 72, as subsequently approved in Ex parte PowerGen (2001) P & CR 5 and by the Supreme Court in Lambeth London Borough Council v Secretary of State for Housing, Communities and Local Government [2019] UKSC 33, [2019] 1 WLR 4317. He expressly cited §11 of the latter case as follows:

“A permission under section 73 can only take effect as an independent permission to carry out the same development as previously permitted, but subject to the new or amended conditions. This was explained in the contemporary Circular 19/86, para 13, to which Sullivan J referred. It described the new section as enabling an applicant, in respect of “an extant planning permission granted subject to conditions”, to apply “for relief from all or any of those conditions”. It added: “If the authority do decide that some variation of conditions is acceptable, a new alternative permission will be created. It is then open to the applicant to choose whether to implement the new permission or the one originally granted.””

(Lewison LJ’s emphasis)

Lewison LJ continued:

“15.

Some further points are, I think, uncontroversial: (i) In deciding on its response to an application under section 73, the planning authority must have regard to the development plan and any other material consideration. The material considerations will include the practical consequences of discharging or amending conditions: Pye at 85B. (ii) When granting permission under section 73 a planning authority may, in principle, accede to the discharge of one or more conditions in an existing planning permission; or may replace existing conditions with new conditions. But any new condition must be one which the planning authority could lawfully have imposed on the original grant of planning permission. (iii) A condition on a planning permission will not be valid if it alters the extent or the nature of the development permitted: Cadogan v Secretary of State for the Environment (1992) 65 P & CR 410.”

(emphasis added)

At §§16 and 17 Lewison LJ cited with approval the following passages of Sullivan J in Pye:

“The original planning permission comprises not merely the description of the development in the operative part of the planning permission, in this case the erection of a dwelling, but also the conditions subject to which the development was permitted to be carried out.” (emphasis added)

At §§18 to 20, Lewison LJ referred to the distinction between the “operative part” or grant of the planning permission on the one hand, and the conditions to which the operative part or grant is subject, on the other. He approved the following passage from the judgment of Hickinbottom J in Cotswold Grange County Park LLP v Secretary of State for Communities and Local Government [2014] EWHC 1138 (Admin), [2014] JPL 981 “… the grant identifies what can be done - what is permitted - so far as use of land is concerned; whereas conditions identify what cannot be done - what is forbidden.”

Lewison LJ continued:

“21.

The question in this appeal is whether, on an application under section 73, it is open to the local planning authority (or on appeal the Welsh Ministers) to alter the description of the development contained in the operative part of the planning permission.

22.

There are three cases that bear on that question. All are decisions of the High Court; and it is naturally common ground that none of them binds this court. …”

(emphasis added).

Then from §§22 to 38 Lewison LJ analysed those three cases, namely Arrowcroft supra, R (Vue Entertainment Ltd) v City of York Council [2017] EWHC 588 (Admin) and R (Wet Finishing Works Ltd) v Taunton Deane BC [2017] EWHC 1837 (Admin) [2018] PTSR 26. In summary he applied Arrowcroft, approved of Vue Entertainment but considered Wet Finishing Works to be wrong.

First, as to Arrowcroft, after setting out the facts at §§22 to 26, he continued:

“26.

….The revised conditions were challenged on the ground that they introduced, at para 23: “a fundamental inconsistency between the conditions and the description of the development contained in the notice of permission.”

27.

Sullivan J upheld the challenge. At [33] he said:

“… the council is able to impose different conditions upon a new planning permission, but only if they are conditions which the council could lawfully have imposed upon the original planning permission in the sense that they do not amount to a fundamental alteration of the proposal put forward in the original application.”

28.

He added at [35]:

“Whatever the planning merits of this new proposal, which can, of course, be incorporated into a new “full” application, I am satisfied that the council had no power under section 73 to vary the conditions in the manner set out above. The variation has the effect that the “operative” part of the new planning permission gives permission for one variety superstore on the one hand, but the new planning permission by the revised conditions takes away that consent with the other.”

29.

It is clear that what Sullivan J meant by the “operative” part of the planning permission was the description of the development, rather than the conditions. These two passages are, in my judgment, dealing with different things. The first deals with the imposition of conditions on the grant of planning permission. The second deals with a conflict between the operative part of the planning permission and conditions attached to it.” (emphasis added).

§29 is central to the Claimant’s case; the Defendant takes issue with it. I further point out that, as regards Arrowcroft, Lewison LJ did not cite §33 in its entirety, nor refer to §§29 to 32, of Sullivan J’s judgment.

Lewison LJ then turned, at §§30 to 33, to consider Vue Entertainment. In that case, planning permission had been granted for, inter alia “the erection of an 8,000 seat community stadium, leisure centre, multi-screen cinema, …” (emphasis added). A condition required the development to be constructed in accordance with specified plans, which showed a 12 screen multi-screen cinema with a capacity of 2,000. The section 73 application sought to amend that condition so as to increase the number of screens to 13, with a capacity of 2,400. The amendment was challenged on the ground that it represented a “fundamental change” to the effect of the planning permission. Lewison LJ continued:

“31.

…. Collins J referred to Arrowcroft and said at [11] that the effect of the change in that case did amend “the permission itself”. He said at [15]:

“Thus, Arrowcroft (supra) in my judgment does no more than make the clear point that it is not open to the council to vary conditions if the variation means that the grant (and one has therefore to look at the precise terms of grant) are themselves varied.”

32.

I understand him to have equated “the grant” with what Sullivan J had called the “operative part” of the planning permission; i.e. the description of the development itself. Collins J continued:

“[16] In this case, the amendments sought do not vary the permission. It is as I have already cited and there is nothing in the permission itself which limits the size of either the amount of floor space or the number of screens and thus the capacity of the multi-screen cinema. The only limitation on capacity is the stadium itself, which has to be 8,000 seats.

[17] It seems to me obvious that if the application had been to amend the condition to increase the capacity of the stadium that would [not] have been likely to have fallen foul of the Arrowcroft principle because it would have been a variation to the grant of permission itself but as I say, that is not the case here.”

33.

It is agreed that “not” in paragraph [17] line 2 is an error and should be ignored”

(emphasis added).

Further potentially important parts of the judgment of Collins J were not cited by Lewison LJ, but are cited in Armstrong as set out in paragraph 98 below.

At §§34 to 38 Lewison LJ addressed the third case, Wet Finishing Works Ltd. In that case the planning authority had granted planning permission for the erection of 84 dwellings. An application was made (and granted) to vary the permission by increasing the number of permitted dwellings from 84 to 90. Although it was not clear to Lewison LJ, it seemed that the limitation to 84 dwellings might well have been contained in the description of the development itself, rather than in a condition. The claimant’s first argument was that, as the original permission was for 84 dwellings, whereas the later permission was for 90 dwellings, “there was a fundamental inconsistency between the operative part of the decision notice and the conditions in accordance with which the development must be constructed.” Lewison LJ continued as follows

“35.

The argument was elaborated, at [42], as follows:

“.. although it may be possible for a condition to restrict what is permitted by a planning permission, for example perhaps to reduce the number of houses that can be built under it, what section 73 does not enable a planning authority to do is to increase what was applied for by way of a condition attached to a planning permission.”

36.

Singh J does not appear to have been referred to the decision of Collins J in Vue …; but he did consider Arrowcroft. He took Arrowcroft as authority for the propositions that: (i) A planning authority may impose different conditions on an application under section 73 provided that they do not amount to a fundamental alteration of the proposal put forward in the original application; and (ii) an alteration will be fundamental if it gives with one hand and takes away with the other.

37.

Singh J also decided that whether an alteration was or was not fundamental was question of fact and degree, which involved a planning judgment. That judgment was for the decision-maker to make and would only be questioned by the court if it was irrational. It should be noted that the argument put to Singh J had its foundation in the proposition that the inconsistency between the operative part and the condition was “fundamental”; and it was that proposition that Singh J addressed.

38.

The judge in the present case followed the approach of Singh J in Wet Finishing Works.” (emphasis added)

At §§39 and 40, Lewison LJ referred to the submissions of the authority and the developer that the only limitation on the power of the planning authority on an application under section 73 was that it could not introduce a condition that made “a “fundamental alteration”” to the permitted development. Whether a change was or was not fundamental was a question of fact and degree for the planning authority to address. The operative part of a planning permission may be the subject of an amendment, which is consequential on a change in the conditions; provided that the change is not a fundamental one. At §41, after referring to the fact that these submissions were said to be supported by Wheatcroft, Lewison LJ rejected the relevance of Wheatcroft (and the change in substance test there stated) in the following terms:

“… . Forbes J held that there was no principle of law which prevented the Secretary of State from imposing conditions that have the effect of reducing the permitted development below the development applied for. He added, however, that the power could not be exercised where the conditional planning permission would allow development that was not “in substance” that which was applied for. The main criterion was whether the development is so changed as to deprive those who should have been consulted the opportunity of being consulted. There are four points to be made about that decision. First, it was not concerned with a statutory provision such as section 73 which expressly restricts that which a planning authority may consider. Second, it was concerned with an ongoing application, rather than with a granted planning permission which gave rise to legal rights to carry out development. Third, it was concerned with a reduction in the permitted development; not an increase in the permitted development. He did not decide that the planning authority or the Secretary of State could grant planning permission for more than the developer had asked for. If the planning authority purported to do that, one can well imagine that potential consultees would have real cause for complaint. Fourth, to ask whether something is “in substance” the same as something else is a different test from whether something is a “fundamental alteration”. I do not consider that the so-called Wheatcroft test is the right criterion to apply to section 73.” (emphasis added)

Lewison LJ then stated his conclusions at §§42 to 43 as follows:

“42.

The question is one of statutory interpretation. Section 73 (1) is on its face limited to permission for the development of land “without complying with conditions” subject to which a previous planning permission has been granted. In other words the purpose of such an application is to avoid committing a breach of planning control of the second type referred to in section 171A. …. On receipt of such an application section 73 (2) says that the planning authority must “consider only the question of conditions”. It must not, therefore, consider the description of the development to which the conditions are attached. The natural inference from that imperative is that the planning authority cannot use section 73 to change the description of the development. That coincides with Lord Carnwath’s description of the section as permitting “the same development” subject to different conditions. Mr Hardy suggested that developers could apply to change an innocuous condition in order to open the gate to section 73 …,

…

43.

If the inspector had left the description of the permitted development intact, there would in my judgment have been a conflict between what was permitted (a 100 metre turbine) and what the new condition required (a 125 metre turbine). A condition altering the nature of what was permitted would have been unlawful. That, no doubt, was why the inspector changed the description of the permitted development. But in my judgment that change was outside the power conferred by section 73.” (emphasis added)

Finally, at §46, Lewison concluded by expressly supporting the analysis of Collins J in Vue Entertainment and stating that to the extent that Singh J held otherwise in Wet Finishing Works, he was wrong.

A developer was granted planning permission in 2015 for “34 self-catering holiday units, a 25-bed inn building, watersports building, storehouse and outfitters along with a commercial and educational unit, nature trails, cycle trails, pathways and family facilities. Re-routing a public right of way at Kilvington” (emphasis added). That permission was subject to conditions including condition 19 restricting use to holiday accommodation only, condition 20 maintaining a register of occupiers and condition 21 restricting occupation to short-term only. The effect of condition 19 was to remove the benefit of the “Use Classes Order”; absent condition 19, the site could have been used for residential accommodation. In 2020 a further permission was granted, removing condition 21 and renumbering conditions 19 and 20 as 17 and 18. The claimant then applied under section 73 for removal of conditions 19 and 20 under the 2015 permission and conditions 17 and 18 under the 2020 permission. On appeal, the inspector decided, as a matter of law, she could not make the change as the removal of the conditions would cause conflict with the original description of the development which specifies use as self-catering holiday units. On a section 288 application, Farbey J quashed the inspector’s decision. In support of the inspector’s decision, the Secretary of State contended that the removal of the conditions brought about a fundamental alteration to the permitted development, applying Arrowcroft, and contending that Finney and Arrowcroft dealt with different points of law: The former was concerned with changing the description of the permitted development, whereas the latter was concerned with “fundamental alteration to the permitted development”.

In her judgment, Farbey J set out the legal framework, citing Hickinbottom J in Cotswold Grange Park, Sullivan J in Pye and Finney at §§19 and 29. At §§38 to 42 Farbey J addressed section 73. At §40 she summarised the effect of Arrowcroft in the following terms:

“40.

Sullivan J held that a section 73 determination involves only the question of conditions subject to which planning permission should be granted. It does not and cannot alter the nature of the planning permission. Consequently, any conditions imposed under section 73 cannot be inconsistent with the nature of the planning permission. A planning authority is able to impose different conditions under a fresh planning permission under section 73 but only if they are conditions which could lawfully have been imposed upon the original planning permission in the sense that they “do not amount to a fundamental alteration of the proposal put forward in the original application.” A planning authority would otherwise be granting planning permission for a development with one hand and effectively refusing planning permission for that development with the other hand by imposing an inconsistent condition (Arrowcroft, para 33).”

At §41 she turned to Finney, setting out §§13 to 15. She then continued at §42:

“42.

The court in Finney observed that, by virtue of section 73(2), a planning authority must consider “only the question of conditions” and must not consider the description of the development to which the conditions are attached (Finney, para 42). A condition altering the nature of what was permitted by the operative part of the permission would be unlawful (Finney, para 43).” (emphasis added)

At §§50 to 54 she set out her analysis of section 73:

“50.

Section 73 is concerned only with changes of conditions. The operational part of the planning permission (the description of what is permitted) endures and cannot be changed. It is plain from the case law that the imposition of a condition altering the nature of what was permitted is unlawful.

51.

The rationale for such a conclusion is not hard to discern. A public decision-maker cannot adhere to a description of permitted development while at the same time deciding to impose a condition that is inconsistent with that description. Such a decision would be irrational. To echo the words of Sullivan J in Arrowcroft, it is irrational to give with one hand and take away with the other.

52.

There was some discussion before me about whether Finney and Arrowcroft only prohibit conditions that are logically inconsistent with the permitted development, reflecting Sullivan J’s reference to “an inconsistent condition” in para 33 of his judgment. If Arrowcroft refers to logic, the court is as well-placed as a planning inspector to assess the conditions: there is no scope for an inspector’s planning judgment. If, on the other hand, the question is whether the conditions amount to a “fundamental alteration” of the permitted development (to which Sullivan J also refers in para 33 of Arrowcroft), the question for the inspector may be one of fact and degree involving planning judgment exercisable by the inspector (subject to public law grounds of intervention). Finney refers at para 43 to a “conflict” between the description and a condition which “alters the nature” of what was permitted. I do not need to determine the precise delineation between logic and judgment in the present case: it does not matter.

53.

Both Finney and Arrowcroft concerned the adding of conditions. That was not the issue before the inspector who had to consider the removal of conditions. It is not inevitable or even clear that the removal of conditions gives rise to the same considerations as their addition. In adding conditions, a decision-maker is not permitted to intrude upon the operative part of the permission. It is difficult to see how the removal of a condition could give rise to such intrusion. When a condition is removed, the operative part of the permission remains intact, albeit in an unconditioned way. In the present case, the removal of the relevant conditions would and could have had no effect on the description.” (emphasis added)

Applying these principles to the facts at §§55 to 58, she concluded that even if the reasoning of Finney and Arrowcroft applied to the removal of conditions, in this case there was nothing in the description that was inconsistent with development permitted by the Order. If the section 73 application were allowed, the way in which the development would change was not because anything in the description would be changed but because the conditions denying the benefit of the Order would be removed. Removing the conditions would not be giving with one hand and taking with the other in the sense indicated by Arrowcroft. The removal of the bar (i.e. the conditions removing the benefit of the Order) could not lead to any alteration of the operational part of the permission (the description) because the operational part of the permission would remain identical.

In 2007 the claimant was granted planning permission for “the development specified in the plan(s) and application submitted… namely: “construction of one dwelling on land situate at… The Beach House, Finney Cook Lane, Portwrinkle, Torpoint”. This was the operative wording. In 2020 the planning authority granted a non-material amendment pursuant to section 96A by way of addition of a condition, stating, that “the development hereby permitted shall be carried out in accordance with the plans listed below”. In December 2020, the claimant applied under section 73 seeking non-compliance with that condition. New drawings were submitted, which the claimant sought to substitute into the condition. They proposed a new dwelling in a different form and style. On appeal, the inspector refused the application under section 73, on the grounds that the nature of the development proposed would be “substantially different to” that allowed by the existing permission.

On section 288 application by the developer, James Strachan KC sitting as a deputy High Court judge quashed the inspector’s decision. In summary, he held (1) that it was common ground in the present case that there was no inconsistency between the new condition and the operative wording of the original permission, and (2) that the power in section 73 is not limited to a non-fundamental variation to the permission overall. There is no principle that section 73 cannot be used to make a fundamental alteration to the overall effect of the permission. The cases of Arrowcroft and Finney were, on their facts, cases concerning conflict with the operative wording. Moreover the case of Vue Entertainment did not establish the existence of a wider restriction on section 73.

Mr Strachan KC conducted a detailed analysis of the case law and in particular Arrowcroft (at §§ 28 to 35) Vue Entertainment (at §§36 to 40) and Finney (at §§41 to 51). As regards Vue Entertainment Mr Strachan KC set out more of the judgment of Collins J than had been set out in Finney. At §38 he quoted the following additional passages from Vue Entertainment as follows:

“12.

The argument in that case [i.e. Arrowcroft] which was accepted by Sullivan J was that it was not permissible for a condition to seek to vary the permission which had been granted and therefore it was a misuse of section 73 to seek to achieve that.

13.

The ratio of Sullivan J’s decision seems to me to be contained in paragraph 33 of his judgment … . Thus the variation had the effect that the operative part of the new planning permission gave their permission for one variety superstore but the new planning permission by the revised conditions would take away that consent.” (emphasis added)

He then set out the three paragraphs from the judgment in Vue Entertainment cited by Lewison LJ at §§31 and 32 of Finney, (set out in paragraph 84 above) and continued by citing the following further paragraphs from Collins J’s judgment (albeit with different paragraph numbering):

“17.

Mr Walton's submission that it is a fundamental change is a reflection of part of the permission only, that is to say, the part that deals with the multi-screen cinema. When one is concerned with fundamental variations, one must look, as it seems to me, to the permission as a whole in order to see whether there is in reality a fundamental change, or whether any specific part of the permission as granted is sought to be varied by the change of condition.

18.

It is to be noted that section 73 itself, as I have said, does not in terms limit the extent to which an amendment of conditions can be made. It does not have, on the face of it, to be within the adjective "minor", whatever that may mean in the context.

19.

It is, I suppose, possible that there might be a case where a change of condition, albeit it did not seek to vary the permission itself on its face, was so different as to be what could properly be described as a fundamental variation of the effect of the permission overall. But it is not necessary for me to go into the possibility of that in the circumstances of this case because I am entirely satisfied that that does not apply in this particular case.” (emphasis added)

The judge pointed out that the defendant placed particular reliance on §19 of Vue Entertainment as to the possibility of a change of condition being so different such as to be a “fundamental variation” of the effect of the permission overall.

As regards Finney, the judge cited large portions of the judgment, including §29 where Lewison LJ had analysed Arrowcroft at §§33 and 35 and confirming that Lewison LJ had rejected reliance upon the Wheatcroft test for an application under section 73.

At §§54 to 64, the judge set out the respective arguments of the parties. The claimant contended that the only restriction to the scope of section 73 is that the modified proposals must not conflict with the operative part of the planning permission and in that case no such conflict arose. The defendants submitted that the question was whether an application under section 73 can be used to obtain a “fundamental variation” of the effect of a permission where there is no conflict with the description of the development, contending that this interpretation is supported by both Arrowcroft and Vue Entertainment.

In his analysis at §§65 to 89, the judge accepted the claimant’s position. At §71, he said that it was common ground that in that case the substitution of the plans proposed by the section 73 application did not involve any conflict with the operative part or grant of planning permission as amended. The case therefore fell to be determined on the basis that no such conflict arose. At §73 he identified the specific issue raised and gave his answer, as follows:

“..did the Inspector lawfully reject the claimant’s section 73 application as “a fundamental variation” of the permission even though it would not involve any conflict with the description of the development permitted”. In my judgment he did not act lawfully in doing so for any or all of the following reasons.”

At §§74 to 89, the judge gave six reasons for concluding that section 73 did not preclude a fundamental variation of the permission as a whole. First, there is nothing in the words of section 73 which limits its application to amendments which do not involve a substantial or fundamental variation. Secondly (at §75) the requirement that a section 73 application be confined to applications for non-compliance with a condition is significantly restrictive in and of itself. There is no obvious need or purpose for reading in additional restrictions. The case of Finney confirms that section 73 cannot be used to vary the operative part. He continued:

“one therefore cannot use s.73 to vary or impose a condition where the resulting condition would be inherently inconsistent with the operative part of the planning permission; that would also involve effective variation of the operative part of the planning permission as well …” (emphasis added)

He continued that if a section 73 application does not lead to any conflict or inconsistency with the operative part of the permission, it was difficult to see why it is objectionable in light of the statutory purpose of section 73 and the Act itself.

Thirdly, the judge concluded that section 73 is clearly intended to be a provision which enables a developer to make an application to remove or vary a condition, provided of course that the application does not conflict with the operative part. Fourthly, the wording of section 96A is informative as part of the statutory context. Section 96A was introduced to amend planning permission generally but its scope is constrained to non-material amendments. If Parliament had wished to limit the Section 73 power to “minor material amendments” or to prevent “fundamental variations” it would have done so expressly. Fifthly, to allow an application to be made for non-compliance which is not in conflict with the operative part of the permission does not dictate the outcome of the application. The application would fall to be determined on its planning merits.

Sixthly, the judge considered that the case law did not materially support the defendant’s attempt to restrict the scope of section 73 to non-fundamental variations where there is no conflict with the operative part of the wording. Arrowcroft and Finney were both cases which involved direct conflict with the operative part of the planning permission originally granted. In Vue Entertainment Collins J contemplated that there might be a case where a change of condition, albeit not seeking to vary the permission itself, was so different as to be what could properly be described as a fundamental variation of the permission overall. However Collins J expressly did not decide the issue. Vue Entertainment is not authority for the proposition that a section 73 application which is consistent with the operative part is nonetheless outside the scope of section 73 if it is considered to involve a “fundamental variation”. Finney was another case where the conflict was between what was proposed in the section 73 application and the operative part of the planning permission. However in the present case it was common ground that no such conflict arose. There was no need for any alteration to the description of the permission for construction of one dwelling. Finally I note that the updated §013 of the NPPG (paragraph 50 above) is consistent with the judge’s conclusions.

The Claimant submits, as regards the law, that there are two distinct restrictions on the exercise of the power under section 73 (as made clear by Lewison LJ in Finney §29):

In relation to restriction 1, “conflict” encompasses “altering the nature or extent” of the grant. Put another way, a condition cannot purport to alter or vary the operative wording of the previous planning permission (Finney §43). Restriction 1 is self-standing. It is based not just on Arrowcroft and Finney but also on Cadogan. Finney §43 sets out restriction 1 and in turn refers back to §15 (iii) and to Cadogan. Finney §29 correctly interprets Arrowcroft (at §35 and §33) in its identification of restriction 1 as separate from fundamental alteration because Finney itself is founded upon the principle in Cadogan that a condition must not alter the extent or nature of the grant. “Grant” is a reference to the operative wording: see Finney §§16 to 20. Cadogan is a clear and binding authority, which is endorsed by Finney and is consistent with Arrowcroft as explained by Finney. §43 of Finney is clearly the application of restriction 1. The reference there to “altering the nature” is not a reference to the “fundamental alteration” test. It is concerned with restriction 1 and Cadogan. There is nothing in Cadogan which qualifies the principle there stated that the “alteration” needs to be fundamental or substantial. If Glidewell LJ had omitted the word “extent” and the word “nature” had been qualified then there would have been a basis for the Defendant’s submissions that this is one and the same as the “fundamental alteration” test. Collins J in Vue Entertainment is consistent with Cadogan i.e. restriction 1. Moreover it is clear from Finney §§36 to 39 that Lewison LJ is criticising the Wet Finishing case because Singh J identified only a fundamental alteration test and failed to identify a conflict test.

Secondly, a distinction is to be drawn between a condition which alters or modifies a proposed development and a condition which alters an existing development for which permission has been granted. Conditions added or removed under section 73 are a different thing from conditions imposed at the time of the original grant of planning permission. A planning authority faced with a full application for planning permission that is in progress does have some scope to grant permission for part only of what is sought, even if that conflicts with the description of the development sought and which wording it can change on the grant of permission. By contrast, section 73 is concerned only with conditions: see Lambeth §11 and Finney §§13, 14, 42. Section 73 requires the operative wording of the existing planning permission to be taken as fixed. The cases of Kent,Wheatcroft,Holborn and Kevin Stevens are not relevant to section 73. Kent and Wheatcroft were not concerned with a conflict between the operative wording and a condition and do not support the proposition that section 73 can be used to grant a part only permission, if that clashes with the operative wording of the permission which has previously been granted. Rather they stand for the proposition that the planning authority can cut down the development sought. It is permissible to have a condition which reduces or is inconsistent with the permission applied for.Arrowcroft §§29 to 32 address an application and do not establish that there can be a condition which reduces or is inconsistent with the permission as granted.

Thirdly, the Defendant’s criticism of Lewison’s rejection of Wheatcroft is unwarranted. Under section 73 the authority cannot consider whether to cut down the permission which has been granted in the operative wording; it can only consider the conditions. Until granted, the operative wording is not set in stone and can be cut down, but under section 73 “it is, and it cannot be”.

Finally, the two most recent cases, Reid and Armstrong support restriction 1. Reid at §§50 to 53 supports the existence of restriction 1. Farbey J cites Finney §43 with approval. As to Armstrong, Mr Burton submits that the judgment is correct and supports restriction 1, but is wrong on restriction 2, as the judge does not deal with §§15 (iii) or 29 of Finney nor with Arrowcroft. In any event, the Defendant here accepts the existence of restriction 2.

Applying those principles to the facts of the present case, the 2022 Permission unlawfully breaches each of these restrictions and is thus ultra vires

The fact of the grant of the 2021 Permission, approving a different substation did not allow the Defendant to grant the 2022 Permission; the 2022 Permission, in relation to the Original Permission which it was amending, was in breach of the restrictions 1 and 2. The Defendant cannot lawfully conflate the 2022 Permission with the 2021 Permission – the focus has to be on the 2022 application before the Defendant, as it is a stand alone permission. But even if one were to look at the situation now, the Defendant is still relying heavily on this substation. The Original Permission on its own can be implemented. Nothing requires the 2022 Permission to be built out in conjunction with the 2021 Permission. The 33 kV substation is still needed whether the 2022 Permission is taken in isolation or it is taken with the 2021 Permission.

As to the law, Mr Green, in oral argument, refined the Defendant’s position as follows:

Essentially the Defendant contends that there is only one relevant restriction on the power under section 73. If it were to be expressed in terms of restriction 1 (conflict with operative wording) then it is only where the conflict between the operative wording and the condition is fundamental that section 73 cannot be used.

Mr Green expands on these submissions as follows. All conditions qualify or limit what would otherwise be unconstrained permission. When granting permission, it is permissible to impose a condition reducing the scope of the scheme as long as it does not take away or alter the substance of the development for which permission was applied: Kent and Wheatcroft. As regards Arrowcroft, it is essentially a case based on “fundamental alteration” i.e. it is a restriction 2 case. As is clear from §§29 to 32, Sullivan J based his analysis on the principles concerning conditions imposed on an original planning permission and relied heavily on the “fundamental alteration test” stated in the Encyclopaedia set out at §29. Arrowcroft at §33 (restriction 2) is thus founded upon the established principle that a condition can cut down a permitted development. If any conflict between a condition and the operative part of the permission were illegitimate, there would have been no need for the fundamental alteration test, on the facts of that case, and no need to consider the importance of the variety superstore in the scheme; and Kent and Wheatcroft would have been decided differently.

As to Finney, the issue was very narrow; namely whether it is open to the authority to alter the description of the development contained in the operative part. The rest of Lewison LJ’s judgment was obiter dicta. His analysis, at §29, of Arrowcroft as identifying two “restrictions” is wrong. The reference at Arrowcroft §35 to the operative words was no more than part of the application of the “fundamental alteration test”; as is Finney §43, when properly analysed. The reference there to “alters the nature of what is permitted” is a reference to the fundamental alteration test. As to Lewison LJ’s rejection of Wheatcroft (at §41), he did not appreciate that Arrowcroft is based on Wheatcroft. The “fundamental alteration test” is Sullivan J’s phrasing of the Wheatcroft test (“different in substance”). Lewison LJ’s criticisms of Wheatcroft are misplaced.

Mr Green submits that Armstrong does not assist, as it does not deal with the issue of whether “any” inconsistency with the operative part is sufficient or whether it has to be a fundamental alteration (and whether you can reduce the scope). The Defendant’s case is that “inconsistency with operative part” is impermissible but only if it is a fundamental inconsistency, relying on §33 Arrowcroft, which paragraph the judge in Armstrong did not address.

Finally, the case of Kevin Stevens is an example of a condition which lawfully cut down permitted development.

As to the facts, whilst Mr Green accepts that the effect of Condition 2 is to prohibit the 33kV substation and to reduce the scope of the permission granted, the removal of the 33kV substation was not a fundamental alteration. The 33kV substation was an ancillary element to a much larger solar farm scheme. Physically it was a tiny element and there were no significant planning consequences arising from its removal. Its removal followed the grant of permission for a working substation under the 2021 Permission which will provide a connection to the national grid. Applying the various tests from Kent, Wheatcroft, Arrowcroft and Cadogan the substation was a severable element of the solar farm development; the substance of the proposed development remained the same; no fundamental alteration was proposed; and there was no change in the nature of the permitted development.

The starting point is that section 73 produces a fresh planning permission and the previous planning permission remains intact. Secondly, section 73 permits only a change to the conditions of the previous planning permission and not to the grant of permission itself.

As to the limits on the scope of the power in section 73 and in particular whether there is one, or more than one, such limit, and if so, what that limit is, the decided cases do not present an entirely clear picture and are not always easy to reconcile. Finney is the only Court of Appeal authority which directly addresses section 73 (Cadogan is the only other Court of Appeal authority cited).

At the heart of the dispute between the parties is §29 of Lewison LJ’s judgment in Finney and his analysis of §§33 and 35 of Arrowcroft as identifying two distinct restrictions on the power. The question is whether, as the Claimant submits, there are two restrictions – restriction 1 (conflict with operative part) and restriction 2 (fundamental alteration of the permission as a whole) - or, as the Defendant submits, a single restriction, namely restriction 2.

There is some force in Mr Green’s submissions. I accept that much of Lewison LJ’s judgment in Finney is strictly obiter dicta (perhaps including §29). The ratio was that it is ultra vires section 73 to change the wording of the operative part. Secondly, detailed analysis of Arrowcroft suggests that Sullivan J’s “fundamental alteration” approach in §33 is derived from the context of the preceding paragraphs, §§29 to 32 (which paragraphs are not referred to by Lewison LJ in Finney). Those paragraphs address the effect of conditions on development proposals and include express reliance (as a “starting point” at least) upon paragraph 72.06 of the Encyclopaedia of Planning Law, directly rejecting the submission of counsel that it did not apply to section 73. This might lead to the conclusion that Sullivan J had in mind only a single restriction i.e. restriction 2 and that he did not identify a distinct restriction in §35. Thirdly, support for this single restriction approach is provided by Holborn §67 which suggests that Arrowcroft is in turn based on the Wheatcroft principle. Fourthly, a variety of different expressions are used in the cases, sometimes interchangeably, to express the nature of the restriction or restrictions, including the following: “inconsistent”, “conflict”, “alter the extent or nature of”, “fundamentally alter”, “fundamentally inconsistent”, (and see also the varying references to “operative part”, “operative wording”, “description”, “grant”, “development permitted”). Fifthly, as regards the two cases since Finney, Reid at §52 raises the question of the meaning of the term “inconsistent” and seems to identify (but not resolve) a choice between something akin to restriction 1 and restriction 2. Moreover Reid seems to ignore the second strand and “fundamental alteration”, nor does it refer to Arrowcroft §35. Finally Armstrong goes the other way and suggests that restriction 2 does not exist at all; the judge pays little attention to §33 of Arrowcroft.

However I have concluded that the balance of the case authorities, and in particular Court of Appeal authority, establishes the following:

I base these conclusions on the following. Even if strictly obiter, the analysis of Lewison LJ in Finney (the only direct Court of Appeal decision) is highly persuasive authority. First, at §29 Finney, Lewison LJ clearly identifies two restrictions; restriction 1 being based on Arrowcroft §35. Secondly §42 clearly supports restriction 1 and at §43 first sentence, Lewison LJ identifies restriction 1 based on “conflict” with the grant. In the second sentence, he explains this by reference to the test in Cadogan of “altering the nature” (effectively referring back to §15(iii) of his own judgment). The test in Cadogan applies to any alteration (in nature or extent) and is not confined to a “fundamental” alteration. Thirdly, as to Cadogan itself, Glidewell LJ was referring to a conflict between the condition and “the grant”; (his reference to altering the extent or nature of “the development permitted” was a reference to permission “granted”: see paragraph 60 above). Fourthly, despite what is said in Holborn §67, and despite a possible analysis of Arrowcroft at §§29 and 33, Lewison LJ (at §41) expressly rejected the application of the Wheatcroft principle to section 73 cases. Fifthly, Vue Entertainment (at §§15 to 17) as adopted in Finney §§46 provides clear support for the existence of restriction 1. Sixthly, in Wet Finishing Works, Singh J (as he then was) adopted a position similar to that of the Defendant here i.e. there is only restriction 2 and seemed to suggest that any inconsistency with the operative wording must be fundamental. This position was expressly disapproved of by Lewison LJ in Finney §46. Seventhly, the two first instance decisions since Finney strongly support the existence of restriction 1. Reid §§50, 51 and 53 confirms the restriction on conflict with operative wording and the fact that “altering the nature” is a reference to that wording. Armstrong §75 similarly identifies restriction 1 as a distinct limit on the power. Finally, some further support for restriction 1 is provided by the terms of the NPPG §§ 013 and 014 (see paragraph 50 above). In these circumstances, I do not accept that Arrowcroft and Finney are both cases based on a single wider fundamental alteration test – both are cases where there was a direct conflict between the new condition and the operative wording of the existing permission.

As to whether restriction 2 also exists i.e. a second, wider, restriction i.e. no fundamental alteration to the permission as a whole (even absent a conflict with the operative wording), Finney §29 suggests that there is such a restriction, based on Arrowcroft §33. Moreover, the parties in this case agree that there is such a restriction. In these circumstances, I proceed on the basis that there is a restriction 2, despite the doubts cast on that in Armstrong (and §013 NPPG) and Vue Entertainment and the fact that Reid does not seem to support it.

By way of illustration, I refer to the example given in Kent County Council of a reduction in the number of houses specified in a development, from, say, 50 houses to 40 houses. The position is as follows:

The operative wording of the Original Permission gives permission for a solar farm and, within that, a substation. That substation is subsequently identified in the plans as a 33kV substation. On the other hand, Condition 2 of the 2022 Permission provides that the development shall not be carried out other than in complete accordance with the approved plans. Those approved plans do not include any substation or the 33kV substation. Thus Condition 2 prohibits the carrying out of the development with a 33kV substation. This was not substantially disputed by the Defendant. In my judgment, if at the time of the Original Permission in 2017, a condition had been imposed which prohibited a 33kV substation, whilst retaining the same operative wording, this would have infringed the principle in Cadogan.

In my judgment, applying restriction 1, in the present case Condition 2 of the 2022 Permission is inconsistent with and in conflict with the operative wording of the Original Permission which the 2022 Permission sought to vary. If, upon grant of the 2022 Permission, the word “substation” had been excised from the operative wording (as happened in Finney), then, as in that case, the 2022 Permission would have clearly been unlawful. The mere fact that it has not been excised does not lead to any different conclusion (see Finney §43).

I therefore conclude that there is a conflict between what was permitted in the Original Permission and what Condition 2 in the 2022 Permission required. For this reason, the 2022 Permission was outside the power conferred by section 73 TCPA and was thus unlawful.

In these circumstances it is not necessary to consider the separate question of whether the 2022 Permission constituted a fundamental alteration of the permission granted in the Original Permission. Nevertheless, I consider the position, if my conclusions on the law above are wrong, and there is only a single restriction – restriction 2 – or if restriction 1 is limited to a “fundamental” conflict or inconsistency with the operative wording.

In this regard, in considering the lawfulness of the exercise of the section 73 power, it is necessary to compare only the new or varied condition and the existing planning permission i.e. in the present case to compare only the Original Permission and the 2022 Permission. The existence of the 2021 Permission is not directly relevant to the lawfulness of the exercise of the section 73 power. As at the date of the Original Permission, the existence of the 33kV substation was a central part of the development. In my judgment, removing that central element (as the 2022 Permission does) amounts to a fundamental alteration of that development. A solar farm with a 33kV substation is fundamentally different from a solar farm without a 33kV substation. Moreover, I accept the submission that, on the facts, the 33kV substation remains an important part of the Original Permission. As positively asserted by Mr Redpath and confirmed by the judgment of HH Judge Jarman QC, it remains a possibility that the Original Permission could be fully implemented on its own, and if so, the need for a 33kV substation remains. I therefore further conclude that the removal of the 33kV substation, and the prohibition upon its construction, in the 2022 Permission, constitutes a fundamental alteration of the development permitted by the Original Permission.

For these reasons ground 1 succeeds. In these circumstances, because I have found that the 2022 Permission is ultra vires, Ground 2 does not arise. Nevertheless I go on to consider Ground 2 in any event.

The Claimant submits that the Defendant failed to have regard to the removal of the 33kV substation, that being a mandatory material consideration.

The Claimant submits that, when granting the 2022 Permission, the Defendant did not appreciate that it was granting a permission that removed the 33kV Substation. There was nothing in the covering letter for the application that explained expressly that the proposal included removal of the substation from the original permission. On the contrary, that letter might have implied that the substation was not affected. It was not included in the non-exhaustive list of changes. The reference to Condition 15 being changed to a compliance condition implied that the requirement for the 33kV substation was still there. Further there is nothing in the two Officer Reports which recognises that the proposal was, amongst other things, to remove the 33kV substation, despite its importance back in 2017 and despite what the Defendant had been saying to the Court in the 2021 Permission Judicial Review. The Officer Reports misunderstood the objectors’ reference to removal of the Original Permission substation (the 33kV substation) as referring to the 2021 Permission substation i.e the DNO substation. Further, there is nothing in the operative wording of the 2022 Permission that recognised the removal of the substation. In fact, to the contrary, the operative wording retained in the 2022 Permission the reference to the “substation” in the description of the Original Permission and then, when that wording then sets out the long list of alterations effected by the 2022 Permission, the removal of the substation is not included in that list.

Contrary to the Defendant’s submissions, the 33kV substation was and is still needed (as explained in paragraphs 39 to 41 above). This is established by the Claimant’s witness statement evidence.

Finally, as to section 31(2A) SCA 1981, it is not obvious that the members would have agreed to removal, had they been aware of it. The Claimant would have pointed out that the development would not work because there was no Sender Substation and, on its own, with no Sender Substation, it would not be possible to get the electricity to a private operator.

The Defendant submits that there was no failure to take account of the removal of the 33kV substation. The whole reason for the 2022 Permission was to modify the layout of the solar farm to allow it to operate in conjunction with the 2021 Permission. It would have been pointless to retain the incomplete 33kV substation and for that reason it was obviously removed. There was no reason to spell out that the redundant proposal for the 33kV substation was to be discarded; this was plain from the plans submitted with the 2022 application and the omission of Condition 15; and the comments of the objectors and as responded to by the Officer Report. It was obvious from all this that the Defendant knew and took account of the removal of the 33kV substation.

Further the Defendant submits that, if contrary to these submissions, the Court were to find that it was unaware that the 33kV substation was to be omitted, this made no difference to the Defendant’s decision. If the members of the Committee had been aware that the substation was to be omitted, there is no reason to suppose that they would have been concerned by this, given that they had approved the 2021 substation permission and that the purpose of the 2022 Permission was to allow the remainder of the solar farm to operate in tandem with the 2021 Permission. Section 31(2A) SCA 1981 applies and relief must be refused.

If, contrary to my conclusion on Ground 1, the removal of the 33kV substation was not ultra vires section 73 and was otherwise a permissible exercise of that power, the Defendant accepts, nonetheless, that its removal was a mandatory material consideration to which it was bound to have regard in deciding whether to grant the 2022 Permission. Issue 1 under Ground 2 is whether the Defendant did in fact have regard to the fact that the 2022 Permission removed the 33kV substation from the development.

On the one hand, it is clear that the primary purpose of the 2022 Permission was to enable the solar farm to work in conjunction with the 2021 Permission which included the DNO substation. Moreover the plans submitted with the application for the 2022 Permission omitted the 33kV substation which had been previously included on the plans submitted with Condition 15.

However, it is not clear either from the application for the 2022 Permission itself or from the Officer Reports that the 33kV Substation was intended to be removed from the development. Both the application letter and the Reports go into considerable detail about the changes which the 2022 Permission sought to make to the Original Permission (see paragraphs 28 and 30 above). The removal of the 33kV substation is not referred to amongst these changes. Secondly, some of the objections to the application refer to the omission of the 33kV substation. Yet, there is, at the very least, some considerable confusion in the Officer Report(s) as to the officer’s understanding of these objections. It does appear at points in the Reports (in particular paragraphs 8.3 and 8.39 of the Officer Report) that the officer dismissed these concerns because she understood them to be directed towards the DNO substation comprised within the 2021 Permission (rather than the 33kV substation).

As to the Defendant’s contention that there was no need to spell out in detail the fact that it was being removed from the development, I am not satisfied that the premise for this submission is well founded. It is not clear that there was no possible reason to retain the 33kV substation. First, at the same time, the Defendant was suggesting, in the course of the 2021 Permission Judicial Review that one possible option open to the Interested Party was connection to a private operator using the Original Permission on its own - and in that event, the 33kV substation would be required.Secondly, on the basis of the evidence before me, it appears that the 33kV substation might still be needed as the Sender Substation even where the solar park is connected to the national grid. Whilst this is not accepted by the Defendant and is a factual dispute which I cannot definitively decide, the Defendant’s explanations in relation to the elements of a substation, its reliance on inverters and transformers are confusing, not fully evidenced and at times inconsistent (see paragraphs 42 and 43 above). In particular, I find the Defendant’s explanation of the change from transformers (in the plural) in the 2022 application to transformer (in the singular) in Condition 20 not convincing; and the Claimant’s explanation more persuasive. Overall I am not satisfied that, given the terms of the application letter and the Officers Reports, it was or must have been obvious to the Members of the Committee that the 33kV substation was being removed as a result of the application for the 2022 Permission.

In these circumstances, I find that the Defendant did not have regard to the fact that the 2022 Permission removed from the development the 33kV substation, in breach of its obligation to have regard to a mandatory material consideration.

As regards section 31(2A) SCA 1981, this is a point raised only at the hearing by the Defendant. Thus there was no evidence as to what did happen or might have happened at the meeting of the Development committee on 26 April 2022. In these circumstances, if the Members of the Committee had been aware that the 2022 Permission removed the 33kV substation from the development, I am not satisfied that it is highly likely that they would have reached the same conclusion and granted the 2022 Permission. If they had been aware, then they might have enquired further and the Claimant herself would have been in a position to point to the possible continuing need for the 33kV substation (as she explains in her second witness statement). Moreover Mr Redpath’s evidence also suggests such a continuing need. For these reasons, had I been required to reach a conclusion on Ground 2, I would not have refused relief pursuant to section 31(2A) SCA 1981.

In the light of the conclusions at paragraphs 130, 132 and 133 above, the Claimant’s claim for judicial review succeeds. The 2022 Permission was ultra vires section 73 TCPA. I will hear the parties on the appropriate form of order and any consequential matters.

Finally I am grateful to counsel for their assistance and for the detail and quality of the argument placed before the Court.