Section 73 Permissions – Case Law Update

Last week the High Court in the case of R (Fiske) v Test Valley Borough Council [2023] EWHC 2221 (Admin), quashed a section 73 permission granted by Test Valley Borough Council in 2022.

The original planning permission was granted in 2017 for:

Installation of a ground mounted solar park to include ancillary equipment, inverters, substation, perimeter fencing, CCTV cameras, access tracks and associated landscaping”. 

The approved plans referred to the substation, and a condition (condition 15) was included which required further details of the substation to be approved.

The owner of the solar farm applied for separate planning permission in 2021 for a substation on part of the land where the solar panels were intended to be situated. They then sought to amend the 2017 permission by way of section 73 to ensure that the substation approved in 2021 could operate in conjunction with the solar farm.

The s.73 amendments included design changes, removal of condition 15 and removal of reference, within the approved plans, to the original substation.

The claimant argued that there was a conflict between the 2017 permission and the 2022 permission as the description of development in the 2017 permission referred to the substation. As such, the grant of the latter permission was ultra vires section 73.

The High Court found that there was a conflict between the original permission and the 2022 permission. “For this reason, the 2022 permission was outside the power conferred by section 73 and was thus unlawful.”

It should be noted that it does not matter if a conflict is fundamental; a s.73 permission cannot result in any conflict with the operative part of an original permission.

 

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