On 10 December 2024 the Court of Appeal handed down its judgment in Test Valley Borough Council and Fiske [2024] EWCA Civ 1541.

The judgment is significant because it provides long awaited clarification on the extent and scope of the powers under s73 of the Town and Country Planning Act 1990.

There are two parts to any given planning permission - (1) the written description of development permitted and (2) the attached planning conditions. Section 73 of the Town and Country Planning Act 1990 permits land to be developed without compliance with conditions which were previously attached to a planning permission. In other words, it permits an application to be made to amend or remove an existing planning condition or conditions. 

Recent case law had clarified, to some extent, the scope of Section 73 and its limitations. In Finney v. The Welsh Ministers [2019] EWCA Civ 1868 the Court of Appeal ruled that Section 73 can only be used to vary the conditions of a planning permission, it cannot be used to amend the description of development of a planning permission or insert a new or amended condition which is inconsistent to the description of development. 

In Armstrong v Secretary of State for Levelling-Up, Housing and Communities [2023] EWHC 142 (KB) it was held that providing a variation is proposed to the conditions of a planning permission and it does not require a change to, or is inconsistent with, the description of development, there are no restrictions or limit on the scope of the change that can be made. The Court confirmed that the concept of ‘minor material amendments’ does not exist in planning law and even substantial changes can fall within the scope of Section 73.

In the High Court decision R (on the application of Fiske) v. Test Valley Borough Council [2023] All ER (D) the Court again confirmed there is no power under Section 73 to impose a condition which is inconsistent with the description of development in a planning permission (however minor). The Court did add however, that contrary to the ruling in Armstrong that in their view Section 73 could not be used to create a fundamental alteration to the permission, adding a potential second limitation on the scope of Section 73.

This led to contradictory positions between the Armstrong and Fiske rulings. This has now been clarified.

The Court of Appeal has now confirmed that the position in Armstrong was in fact correct and that there is no limit to the scope of the changes which can be made under s73, providing they are not inconsistent with the description of development. There is no ‘second’ restriction (as suggested by the High Court in the previous Fiske judgment) meaning even substantial or fundamental changes to the development can be permitted under s73.

This ruling will be welcomed by those working in the planning system as it removes the previous uncertainty in this area caused by the conflicting judgments. It also ensures that s73 remains a significant and flexible tool for those seeking to make substantial changes to their planning permissions as schemes develop over time. This flexibility is crucial as the industry still awaits confirmation from the Government as to when the long mooted, and desperately needed, section 73B[1] provisions will come into force.

As a final word of caution, it will still be necessary for developers, and those seeking planning permission, to ensure the description of development on any planning application (and subsequent planning permission) is carefully worded to provide as much flexibility as possible further down the line should amendments need to be made. As a rule of thumb, the more generally worded the description of development, the greater ability to make changes later. A perfect example of when less, is indeed, more. 

[1] Introduced by the Levelling Up and Regeneration Act 2023 but not yet in force. This provision will allow changes to both the description of development and the conditions of a permission providing the effect of the changes would be not substantially different from the existing permission.