Supreme Court Refuses Permission to Appeal
June 11, 2020
The Supreme Court has refused permission to appeal in Finney v Welsh Ministers.
Readers of the Planning Bulletin may recall that this case concerned a proposal to replace two wind turbines with two taller turbines and that the vehicle chosen by the developer to obtain planning permission for doing so was an application under Section 73 of the Town and Country Planning Act 1990, something which if often described as an application to ‘amend’ an existing planning permission but which is actually an application for permission to carry out development authorised by an existing planning permission without complying with one or more of the conditions of the existing permission.
In this case the relevant condition was the ‘plans’ condition which required the development to be carried out in accordance with certain specified plans which showed the details of turbines 100m in height. The developer’s application for was permission not to comply with the condition and was made on the basis of substitute plans showing the details of turbines 125m in height. Significantly, the description of the development in the original planning permission was “for the installation and operation for 25 years of two wind turbines with a tip height of up to 100m”.
The LPA refused the application. An Inspector appointed by Welsh Ministers allowed the subsequent appeal but amended the description of the development in doing so, to reflect that the new turbine height was greater than the height originally permitted. There was then a challenge from a third party objector, who contended that the Inspector had no power to allow the appeal and grant planning permission for development beyond the scope of the original planning permission which was explicitly for turbines up to 100m in height. The challenge was dismissed at first instance but succeeded on appeal ( EWCA Civ 1868) when the Court of Appeal held that Section 73 is limited on its face to permission for the development of land without complying with conditions and that the decision-maker’s jurisdiction is limited to considering only the question of conditions and not therefore the description of the development to which the conditions attached.
The Supreme Court’s decision not to give permission to appeal was issued at a time when many in the development sector have been arguing for greater flexibility in the planning system following the Coronavirus emergency, for instance by allowing a simple procedure to renew or extend the life of planning permissions or genuinely to make substantive amendments, without the need for a completely new permission.
Section 73 used to provide the means to renew a planning permission – by applying under the section not to comply with the time limit condition. That opportunity was withdrawn when the last Labour government amended the section explicitly to exclude its use to extend the period for commencement. Whilst the Labour government enacted Section 96A which permits ‘non-material amendments’ in many cases, the only means of securing permission for a substantive amendment will be to make a completely new planning application.