Test Valley BC v Fiske: Limits on Conditions Modifying Permissions
Public Law and Judicial Review, Planning and Environment, Local Government
On 10 December the Court of Appeal handed down judgment in Test Valley BC v Fiske [2024] EWCA Civ 1541.
The Court held that:
- 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;
- the operative part of a planning permission cannot give consent for a development in one hand, only for a condition to take that consent away in the other;
- it would be unlawful in a decision notice granting planning permission expressly for 10 houses to impose a condition prohibiting the erection of any more than 9, or just 1 house. Such a condition would derogate from or negate the consent granted by the operative part of the decision notice. It would not reasonably relate to the planning permission granted;
- under s 73 TCPA 1990 it is not permissible to grant permission altering the operative wording of the original permission (Finney). A condition may not be imposed having the same effect;
- however, provided both the operative part and the conditions of a s 73 permission are consistent with the operative part of the original permission, there is no further restriction on the imposition (or removal) of conditions merely because they make a substantial or fundamental alteration to the development authorised by the permission read as a whole.
Analysis
This judgment provides clarity in an area that has seen divergent decisions at first instance, but it closes off the possibility of cutting down the scope of a permission by the imposition of a condition that deviates from the words of grant. Applicants and local planning authorities will therefore need to give careful consideration to how development is described in applications and decision notices, in the knowledge that at the time of grant it will not be open to the authority to impose a condition that conflicts with the operative wording of the permission.
Robin Green and Robert Williams acted for Test Valley Borough Council.
