Test Valley Borough Council v Chala Fiske [2024] EWCA Civ 1541
Test Valley section 73 is the leading Court of Appeal authority on how far conditions may be changed on a section 73 permission.
The court confirmed two important propositions: a section 73 condition cannot contradict or remove part of the operative grant in the original permission, but there is no separate legal rule limiting section 73 to changes which are not substantial or fundamental.
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- Neutral citation
- [2024] EWCA Civ 1541
- Court
- Court of Appeal (Civil Division)
- Judgment date
- 10th December 2024
- Judge
- Lord Justice Dingemans, Lord Justice William Davis and Lord Justice Holgate
- Case number
- CA-2023-001910
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What Test Valley decided
The case concerned a solar farm at Woodington Farm in Hampshire. The original 2017 permission expressly included a 33kV substation. A later section 73 permission retained that wording in its operative grant but used conditions and revised plans which excluded the substation.
A local resident challenged the later permission. The High Court quashed it and the Court of Appeal dismissed Test Valley Borough Council’s appeal.
A condition cannot take away what the grant gives
Section 73 allows an authority to reconsider the conditions subject to which the same development is permitted. It does not allow the authority to grant one thing in the operative part and then remove it through a condition.
The Court of Appeal described the distinction as inherent in the statutory scheme. Conditions may regulate the development, but they cannot negate or contradict part of the operative grant.
The Finney principle applies to conditions as well as the description
Finney had already established that section 73 cannot be used to rewrite the operative description of development.
Test Valley confirms that the same limitation cannot be circumvented by leaving the description untouched while imposing a condition which has the opposite practical effect.
There is no separate fundamental-alteration limit
The council also argued about whether the altered permission made a fundamental or substantial change to the original scheme.
The Court of Appeal held that this is not a separate jurisdictional test under section 73. Provided the operative grant is not contradicted, Parliament has not imposed a rule limiting section 73 to minor or non-fundamental changes.
The court expressly approved the analysis in Armstrong v Secretary of State [2023] EWHC 176 (Admin).
Wheatcroft is about a different problem
The familiar Wheatcroft substantial-alteration principle concerns changes to the proposal during the processing of a planning application and whether affected parties have had a fair opportunity to respond.
It is not the legal test defining the statutory scope of section 73.
The practical section 73 test
After Test Valley, the important questions are whether the new permission keeps the same operative development, whether the revised conditions are consistent with that operative grant, whether the ordinary Newbury tests for conditions are met, and whether any other express section 73 restriction applies.
The scale of the design change may be highly relevant to planning merits and consultation, but it is not by itself a jurisdictional bar.
Section 73B remains unavailable
Section 73B was inserted into the 1990 Act to provide a future route for a permission which is not substantially different from an existing permission. As at 10th September 2026 it has still not been brought into force.
Until that changes, the distinction drawn in Armstrong and Test Valley remains particularly important when deciding between section 73 and a fresh application.
The officer report ground would not have succeeded
The Court of Appeal also considered, although it did not need to determine the appeal on this basis, whether members had been adequately informed about the missing 33kV substation.
It considered the committee material sufficient and would have allowed the council’s ground on that point. The permission nevertheless remained unlawful because of the section 73 inconsistency.
Read the full Test Valley judgment
The full Court of Appeal judgment is held in the Planning Geek case law library. Gold Members can open the protected PDF below.
Test Valley Section 73 Case Law Page Updated: 10th September 2026