Recent High Court Decision Refining On Finney And S73 Changes Affecting Operative Wording

• Published date: 13 September 2023
• Subject Matter: Environment, Environmental Law
• Law Firm: Lewis Silkin
• Author: Sara Hanrahan

On 6 September, the High Court handed down judgment in R (Fiske) v Test Valley Borough Council [2023] EWHC 2221 (Admin), to quash a decision granting planning permission pursuant to S73 TCPA 1990 for a solar farm development in the Test Valley.

Mr Justice Morris held that there are "two distinct restrictions" on the exercise of power under section 73. These are:

1. the S73 permission must not introduce a condition that "creates a conflict or is inconsistent" with the operative wording of the original planning permission and its conditions and;

2. the S73 permission must not "fundamentally alter" the development permitted by the original permission.

In reaching this decision the Judge relied heavily on Finney v Welsh Ministers [2020] PTSR 455 [2019] EWCA Civ 1868.

The Facts

In April 2022 the Claimant, Mrs Chala Fiske, applied for an order to quash a S73 planning permission ("the S73 Permission") to vary conditions within an earlier planning permission granted in 2017 ("the Original Permission"). The Original Permission was for a ground mounted solar farm within 72 hectares of agricultural land at Woodington Farm, Woodington Road, East Wellow. The precise operative wording was:

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

Conditions 2 and 15 approved details for a 33kV substation. Subsequently, the S73 Permission was granted to allow various design changes to the scheme the effect of which was to remove the 33kV substation from the approved plans. The omission of the 33kV was not substantially disputed by the Council as they had relied upon the solar farm working in parallel with a separate planning permission for a DNO substation development that had been approved in May 2021 (Ref:20/00814/FULLS).

Grounds

The Claimant argued that the S73 Permission was unlawful for two reasons:

1. The S73 Permission was ultra vires since removing the substation permitted by the Original Permission, the Council granted a permission that conflicted with the operative wording of the Original Permission and/or that fundamentally altered the development permitted under the Original Permission; and

2. The Council failed to have regard to a mandatory material consideration, namely the fact that in granting the 2022 Permission it would be granting a permission which altered the Original Permission by removal of the substation.

Legal Issues

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