Another judgment has muddied the waters on amending planning permissions. Developers looking to make changes will need to take heed, writes Charlie Reid.
The secretary of state for levelling up, housing and communities, Michael Gove, recently wrote to local planning authorities about increasing housing delivery. In his letter dated 8 September 2023 (but only published on 19 October), he set out three ways in which councils can make it easier for developments to progress.
Alongside encouraging development on allocated sites and small brownfield sites, he stressed that “councils should be open and pragmatic in agreeing changes to developments where conditions mean that the original plan may no longer be viable, rather than losing the development wholesale or seeing development mothballed”.
High inflation and the changing building safety regime (such as the second staircases requirement for residential buildings over 18m, confirmed by Gove in July 2023), are placing the viability of housing-led regeneration schemes, in particular, under considerable strain. Within this context, the call for pragmatism will be welcomed by developers, many of whom are seeking to amend existing planning permissions to meet new regulatory requirements while maintaining deliverability.
A case of confusion
Planning lawyers will also be pleased because the vexed issue of amending planning permissions has become increasingly legalistic. The Supreme Court’s references last summer in Hillside Parks Ltd v Snowdonia National Park Authority [2022] UKSC 30; [2023] EGLR 4 to councils’ “limited powers to vary a planning permission” were a high water mark and have arguably run counter to the government’s agenda by creating nervousness within some councils about the extent to which planning permissions can be amended.
Lawyers rejoiced at the High Court’s judgment in Armstrong v Secretary of State for Levelling-Up, Housing and Communities [2023] EWHC 176 (Admin); [2023] PLSCS 21, which clarified that applications under section 73 of the Town and Country Planning Act 1990 were concerned with amending planning conditions only and not limited to “minor material amendments”, resulting in changes to Planning Practice Guidance in July 2023 (which now explains that “there is no statutory limit on the degree of change permissible to conditions under section 73, but the change must only relate to conditions and not to the operative part of the permission”).
However, the High Court judgment in R (on the application of Fiske) v Test Valley Borough Council and another [2023] EWHC 2221 (Admin); [2023] PLSCS 156 on 6 September 2023 casts doubt on what was perceived to be newfound clarity.
The substation case
The case concerned a solar farm development in Hampshire. Planning permission was originally granted in 2017 for a “solar park to include… [a] substation”. A planning condition required access/enclosure details for the 33kV substation to be approved.
The developer then obtained a separate planning permission in 2021 for a larger 132kV substation plus solar panels within the site of the original 2017 permission, with the intention that the larger substation would facilitate connection of the 2017 solar park to the electricity grid. In 2022, planning permission under section 73 was granted, varying the original 2017 solar farm permission by omitting the substation condition and removing references to the original substation from the approved plans. The intention was to enable the 2017 solar farm scheme to be developed in conjunction with the 2021 substation scheme (ie swapping substations).
High Court challenge
The 2022 section 73 permission was challenged on the basis that the council did not have the power to grant permission for the changes sought. The legal issue was the scope of section 73. Acknowledging the conflicting case law in this area, the judge concluded on balance that using section 73 involves two steps:
- Is there a conflict between the description of development and the conditions (“restriction 1”)?
- Do the changes amount to a fundamental alteration of the scheme as a whole (“restriction 2”)?
The judge explained that restriction 1 applies to any conflict or inconsistency between the description of development and the conditions and that under section 73 there is no power to introduce a condition which creates a conflict or is inconsistent with the description of development in the original permission. In Fiske, the 2022 permission fell at the first hurdle as it removed references in the conditions and plans to a substation when a substation was included in the description of development.
However, in case he was wrong, the judge went on to consider restriction 2 and opined that the 33kV substation in the original 2017 scheme was a central element to that scheme and its substitution via the 2022 permission for a 132kV substation amounted to a “fundamental alteration”. So on either basis, the 2022 permission failed the test and would have been quashed.
Where does this leave us?
The legal issue that arises is that restriction 2 was explained as applying even when restriction 1 does not. This creates uncertainty because the judge acknowledged the doubt cast on this analysis by Armstrong only seven months earlier. In applying restriction 2, the judge’s language was also far from conclusive (“…restriction 2 (if it exists)”).
One sympathises with the council, as it was clearly trying to be pragmatic, as per Gove’s request. However, the case reveals the difficulties faced both on the ground and in the courts when amending planning permissions.
The judgment is being appealed and hopefully the Court of Appeal will straighten out the issue once and for all. Practitioners also have a new tool available in the form of section 73B (introduced by the Levelling Up and Regeneration Act 2023), which is designed for precisely a situation where a council is satisfied that the effects of a proposed variation will be not substantially different from that of the existing permission. Let us hope it is applied pragmatically.
Charlie Reid is counsel in the planning and environment team at Ashurst LLP
