Court of Appeal rules planning inspector went beyond her powers in section 73 TCPA case

A planning inspector exceeded her powers in a case concerning permission for wind turbines, the Court of Appeal has ruled.

Lewison LJ said the case concerned the limits of the power under section 73 of the Town and Country Planning Act 1990 to grant planning permission for development without complying with conditions subject to which a previous planning permission was granted.

Objector John Finney brought the case over the permitted height of turbines at a site in Rhydcwmerau, Carmarthenshire.

Carmarthenshire County Council had given planning consent to Energiekontor (UK) for two wind turbines, with a tip height of up to 100m, with 22 conditions one of which provided that the development was to be carried out in accordance with a number of approved plans and documents.

A few months later, Energiekontor applied under section 73 of the 1990 Act to Carmarthenshire for the removal or variation of this condition so that a turbine of up to 125 metres could be built.

Carmarthenshire refused and Energiekontor appealed to the Welsh Ministers, whose inspector allowed the appeal.

In Finney v Welsh Ministers & Ors [2019] EWCA Civ 1868 Lewison LJ, with whom Lord Justice David Richards and Lord Justice Arnold agreed, said: “There can be no challenge to the inspector's planning judgment. The sole challenge is that she had no power to allow the appeal and to grant planning permission for development that was not covered by the description of the development in the body of the original planning permission.”

Welsh Ministers submitted that section 73 enabled developers to refine schemes once they knew more about what might be financially viable or physically deliverable.

If such changes were not allowed “developers would be at the mercy of local planning authorities up and down the country who might have differing practices about the level of detail to be specified in the description of permitted development; and who might be encouraged to make such descriptions as detailed as possible to avoid the possibility of applications under section 73”.

Lord Justice Lewison said the question was one of statutory interpretation. He said that if the inspector had left the description of the permitted development intact, “there would in my judgment have been a conflict between what was permitted (a 100 metre turbine) and what the new condition required (a 125 metre turbine)”.

He explained: “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. But in my judgment that change was outside the power conferred by section 73.”

This did not create a predicament for developers as non-material changes could be dealt with under section 96A of the Act while for material changes “I do not see the objection to a fresh application being required”, the judge said.

Mark Smulian