'Landmark' ruling has ramifications for Section 73 Applications

What do we mean by Section 73?

A planning permission comprises both the part which operates to grant consent for the development it describes (‘the operative part’) and the conditions subject to which that permission is granted.

 

Section 73 of the Town and County Planning Act 1990 enables a person to make an application to a local planning authority in respect of an extant planning permission granted subject to conditions, for the grant of a new permission with different or no conditions.

 

Section 73 applications have increasingly been used by developers to make amendments to permissions in response to shifts in the market, as part of cost saving exercises or in response to changing standards. When it comes to major developments, it is usual for a Section 73 application to be made at some point pre or post commencement of development.

 

What is the background to this Court of Appeal Ruling?

 

In 2017, Test Valley Borough Council granted a developer permission for a solar farm, including ground-mounted panels and an electricity substation. Four years later, the council granted the same developer a new consent on part of the site covered by the 2017 permission, which included a larger electricity substation that would enable the solar farm to connect to the grid.

The Council then granted the developer a Section 73 permission to vary the conditions attached to the 2017 permission so that it could be developed in conjunction with the new 2022 permission, including the larger substation.

However, this decision was challenged by a resident from the village next to the solar farm on the grounds that removing the substation permitted in the 2017 permission meant the 2022 Section 73 permission was in conflict with the operative wording of the initial permission. It was also argued that the changes proposed as part of the 2022 application fundamentally altered the development permitted in 2017 i.e. the substation originally approved was a 33kV substation, and the one approved under the 2022 permission was 132kV.

The initial High Court judgement in September 2023 concluded that there was "a conflict between what was permitted in the original permission and what condition two in the 2022 permission required. For this reason, the 2022 permission was outside the power conferred by section 73 [of the Town and Country Planning Act] and was thus unlawful."

 

What are the implications of the recent Court of Ruling decision?

 

In December 2024 the Court of Appeal upheld the High Court ruling quashing the Council’s consent for changes to the solar farm and electricity substation permission.

The ruling is being called ‘landmark’ due to the ramifications it may have for the variations that can be made under Section 73.

In his Court of Appeal ruling, Lord Justice Holgate held that while a council can use a Section 73 application to vary or remove conditions of an existing planning permission, it cannot alter the operational part of the original permission. In short this means that councils cannot approve conditions attached to a planning permission that are “inconsistent” with the operative part of the original consent.

Lord Justice Holgate also confirmed that the operative part of a permission should be considered to include any drawings as well as the description of the scheme, if they are listed in the heading of a decision.

Following the ruling, it is said that this decision highlights the need to think carefully about the description of development from the outset. This could see developers seeking to keep the description of development in the wording of operative parts potentially ‘generic’ to give greater flexibility further down the line.

 

If you would like to discuss the implications of this court ruling further, please get in touch with DHA's Laura Jackson.