Town and country planning – Planning permission – Conditions – Wind turbine – Appellant appealing against decision on scope of power to grant planning permission for development of land when conditions attached to previous permission not complied with – Whether, on application under section 73 of Town and Country Planning Act 1990, local authority having power to alter description of development in operative part of planning permission – Appeal allowed
In 2016, the third respondent applied to the second respondent local authority for planning permission for the installation and 25-year operation of two wind turbines, with a tip height of up to 100 metres. The second respondent granted full planning permission “for the development proposed by you as shown on the application form, plans and supporting documents”. The permission was subject to 22 conditions. Condition 2 provided that the development was to be carried out in accordance with a number of approved plans and specified documents which showed a wind turbine with a tip height of 100 metres.
The second respondent subsequently applied under section 73 of the Town and Country Planning Act 1990 to amend the condition so as to permit a tip height of up to 125 metres. When that application was refused, the second respondent appealed to the first respondent Welsh Ministers. The appellant objected to the appeal on the ground that the increase in tip height would have an adverse effect upon his residential amenity. An inspector appointed by the first respondents allowed the appeal and granted permission subject to the amended condition.
The High Court upheld that decision. The judge followed the approach of Singh J in R (on the application of Wet Finishing Works Ltd) v Taunton Deane Borough Council [2017] EWHC 1837 (Admin) and concluded that, on an application to vary a condition to a previous planning permission under section 73, a different condition could be imposed if it did not amount a fundamental alteration of the original proposal: [2018] EWHC 3073 (Admin).
The appellant appealed. The question was whether, on an application under section 73, it was open to the second respondent (or the first respondent on appeal) to alter the description of the development contained in the operative part of the planning permission.
Held: The appeal was allowed.
(1) The question was one of statutory interpretation. Section 73(1) was on its face limited to permission for the development of land “without complying with conditions” subject to which a previous planning permission had been granted. The purpose of such an application was to avoid committing a breach of planning control of the second type referred to in section 171A. Its purpose was to give the developer “relief” against one or more conditions. On receipt of such an application section 73(2) said that the planning authority had to “consider only the question of conditions”. Therefore, it must not consider the description of the development to which the conditions were attached. The natural inference from that imperative was that the planning authority could not use section 73 to change the description of the development. That coincided with Lord Carnwath’s description of the section in Lambeth London Borough Council v Secretary of State for Housing, Communities and Local Government [2019] UKSC 33; [2019] EGLR 42, as permitting “the same development” subject to different conditions.
(2) The third respondent had suggested that developers could apply to change an innocuous condition in order to open the gate to section 73, and then use that application to change the description of the permitted development. However, it was notable that if the planning authority considered that the conditions should not be altered, it might not grant permission with an altered description but subject to the same conditions. On the contrary it was required by section 73(2)(b) to refuse the application. That requirement emphasised the underlying philosophy of section 73(2) that it was only the conditions that mattered. It also meant that such a suggestion was a misuse of section 73.
(3) If the inspector had left the description of the permitted development intact, there would have been a conflict between what was permitted (a 100 metre turbine) and what the new condition required (a 125 metre turbine). A condition altering the nature of what was permitted would have been unlawful. That, no doubt, was why the inspector changed the description of the permitted development. However, that change was outside the power conferred by section 73, one of the purposes of which was to safeguard the original grant of planning permission. But that purpose was achieved because a successful application under section 73 resulted in a new planning permission. Even an unsuccessful application did not result in the revocation of the original permission. The appellant’s argument did not undermine that purpose.
(4) In R (Vue Entertainment Ltd) v City of York Council [2017] EWHC 588 (Admin); [2017] PLSCS 14, Collins J was correct in his analysis of the scope of section 73 (which made it clear that a planning authority faced with an application to vary a permission had to consider only the question of the conditions subject to which planning permission should be granted). To the extent that Singh J held otherwise in Wet Finishing Works, he was wrong. It followed that the judge was also wrong in the present case in following Singh J (although conformably with the rules of precedent it was understandable why he did so). Accordingly, the inspector’s decision would be quashed because it was beyond her powers.
Ben Fullbrook (instructed by Leigh Day) appeared for the appellant; Richard Turney (instructed by the Government Legal Department) appeared for the first respondent; the second respondent did not appear and was not represented; David Hardy (Solicitor Advocate, of Squire Patton Boggs LLP) appeared for the third respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Finney v Welsh Ministers and others
