Finney v Welsh: Court of Appeal Decision

In Finney v Welsh, the appeal court supported the decision to refuse an increase in wind turbine height after finding that a 10-meter increase in turbine height would be a material change that would be inconsistent with the description of the permitted development and thus would result in a different development. A section of the decision is provided below. The full decision can be accessed by selection the document links on this page.

A judgment handed down by the Court of Appeal confirmed that the variation of a condition under section 73 of the Town and Country Planning Act 1990 must not result in conflict with the original description of development (Finney v Welsh Ministers [2019]).

In Finney, the Court of Appeal found (excerpt follows):

The question is one of statutory interpretation. Section 73 (1) is on its face limited to permission for the development of land “without complying with conditions” subject to which a previous planning permission has been granted. In other words the purpose of such an application is to avoid committing a breach of planning control of the second type referred to in section 171A. As circular 19/86 explained, its purpose is to give the developer “relief” against one or more conditions. On receipt of such an application section 73 (2) says that the planning authority must “consider only the question of conditions”. It must not, therefore, consider the description of the development to which the conditions are attached. The natural inference from that imperative is that the planning authority cannot use section 73 to change the description of the development.

That coincides with Lord Carnwath’s description of the section as permitting “the same development” subject to different conditions. Mr Hardy 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. It is notable, however, that if the planning authority considers that the conditions should
not be altered, it may not grant permission with an altered description but subject to the same conditions. On the contrary it is required by section 73 (2) (b) to refuse the application. That requirement emphasises the underlying philosophy of section 73 (2) that it is only the conditions that matter. It also means, in my judgment, that Mr Hardy’s suggestion is a misuse of section 73.

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). A condition altering the nature of what was permitted would have ben 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. 

Finney V Welsh Ministers Etal 11 5 2019

Download file (202 KB) pdf


NOV 5 2019
back to top