Section 73 Permissions: The implications of Finney and Armstrong
Public Law and Judicial Review, Planning and Environment, Local Government

Today, the Court of Appeal (Lord Justices Holgate, Dingermans and William Davis) will hear argument in Fiske v Test Borough Council.
The central issue is whether – and if so to what extent – conditions can permissibly ‘cut down’ the grant of a planning permission. In particular, whether conditions can excise from the grant of permission an element of the development specifically referred to in the ‘operative wording’.
The case concerns a grant of planning permission for ‘a solar park’ which was to include, amongst other matters, a ‘substation’. A s.73 application was later sought to amend the conditions to remove the permitted substation, and to vary the layout of the solar park so that it was consistent with a separate grant of planning permission on the same site for a different substation.
At first instance Morris J held that the grant was ultra vires, both because the conditions conflicted with the ‘operative wording’ and because the omission of the original substation amounted to a ‘fundamental alteration’ which was impermissible under s.73. He also concluded that the Council did not appreciate that the original substation had been omitted from the s.73 grant, and thus failed to take account of a mandatory material consideration.
The appeal will (hopefully) allow the Court of Appeal to bring some clarity to the law concerning, and scope of, s.73 permissions.
Robin Green and Robert Williams appear for the Appellant, Test Valley Borough Council.