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Supreme Court rejects appeal bid by Welsh Ministers over s.73 permissions ruling

The Supreme Court has refused the Welsh Ministers’ application for permission to appeal a ruling that s.73 permissions cannot alter the description of development, it has been reported.

The application to the Supreme Court to appeal the ruling in Finney v Welsh Ministers [2019] EWCA Civ 1868 was heard by a panel comprising Lady Black, Lord Lloyd-Jones and Lord Sales.

Commenting on the decision, Landmark Chambers said: “It is therefore now settled that s.73 of the Town and Country Planning Act 1990 may not be used to amend the operative part of a planning permission or to impose a condition which would be inconsistent with the operative part of the original planning permission.”

Ben Fullbrook acted for Prof. Finney and Richard Turney acted for the Welsh Ministers. Both are members of Landmark Chambers.

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Objector John Finney had 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 the Court of Appeal Lord Justice Lewison, with whom Lord Justice David Richards and Lord Justice Arnold agreed, quashed the inspector’s decision as it was beyond her powers.

See also: We need to talk about Section 73: The Lambeth and Finney cases - Michael Dempsey discusses whether two recent decisions are indicative of something more fundamental about section 73 and how it is used and understood in practice.

Section 73 changes – don’t let the Gremlins in - Roy Pinnock considers recent cases on Section 73 permissions and examines the power to make non-material changes to planning permissions under section 96A of the Town and Country Planning Act 1990.

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