Blake Morgan secures landmark ruling in Court of Appeal s73 planning challenge

The case helps define the ambit of power under s.73 to alter developments as well as providing useful clarification on the meaning of operative part.

The proposed development was for a large solar farm in East Wellow, Hampshire. The client opposed the scheme because of its proximity to her home and surrounding residents. The Council appealed against Mrs Fiske’s successful ruling in the High Court last year and judgment was handed down on 10 December 2024.

The main issue examined was whether it is outside the scope of s.73 to impose a condition that (i) is materially inconsistent in any way with the operative part of the original permission (other than de minimis) (“Restriction 1”) and / or (ii) makes a “fundamental alteration” of the development permitted by the original permission (“Restriction 2”).

The Council sought to argue that the power under s.73 was subject only to Restriction 2 and that a new condition could otherwise alter the operative part. Mrs Chala Fiske submitted that s.73 was subject to both Restriction 1 and Restriction 2.

The proposed solar farm was initially granted full planning permission (ref. 15/02591/FULLS) in 2017. Holgate LJ confirmed that the operative part of the 2017 decision note comprised two parts, a description of the development which included reference to a ‘substation’ and a list of ‘approved plans’ which included a drawing for a 33kv substation.

Details of substation were subsequently approved under condition 15 (site layout plan H.0357_41 Rev).

On 27 April 2022, the appellant granted the s.73 permission (21/03722/VARS) which was the subject of the appellant’s challenge in the High Court. The operative part of the 2022 decision notice granted full planning permission “for the above development in accordance with the approved plans listed below”.

The description of the development within the operative part included a reference to a “substation” but the listed approved drawings did not include the approved 33kV drawing or reference to layout plan H.0357_41 Rev. Nor did the s.73 permission replicate condition 15 requiring details to be approved of a 33kV substation. Instead, condition 2 required the development to be carried out in accordance with a list of approved plans that omitted any references to the 33kV substation.

The appellant said this inconsistency was not unlawful because the reference to a “substation” had been retained in the operative part of the description.

Holgate LJ did not accept this argument and in reliance on Arrowcroft, and Finney determined that Restriction 1 was the correct test to apply. As per Sullivan J in Arrowcroft…

He also clarified that where both the operative part and the conditions of a s.73 permission are consistent with the operative part of the earlier permission then legislation does not contain any language that prevents conditions making substantial or fundamental alterations to the permitted development.

For these reasons, Holgate LJ concluded that the power to impose conditions under s.73 was subject to Restriction (1), but not to restriction (2).

Sara Hanrahan said:

Acting for the Respondent, the Blake Morgan team was led by Sara Hanrahan and Dan Watts with James Burton of 39 Essex Chambers as Counsel. The Judgment is available here.