Finney v Welsh Ministers, Court of Appeal - Administrative Court, November 15, 2018, [2018] EWHC 3073 (Admin)

Resolution Date:November 15, 2018
Issuing Organization:Administrative Court
Actores:Finney v Welsh Ministers

Neutral Citation Number: [2018] EWHC 3073 (Admin)

Case No: CO/1281/2018





Cardiff Civil Justice Centre

2 Park Street Cardiff

Date: 15 November 2018



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The Claimant was represented by Mr Ben Fullbrook (instructed by Leigh Day)

The Defendant was represented by Mr Richard Turney (instructed by the Government Legal Service)

The First Interested Party did not appear and was not represented

The Second Interested Party was represented by David Hardy, Partner of Squire Patton Boggs LLP

Hearing date: 26 September 2018

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Sir Wyn Williams:

  1. This is an application under section 288 of the Town and Country Planning Act 1990 (hereinafter referred to as ``the Act'' or ``the1990 Act''). The Claimant seeks an order quashing the decision of a Planning Inspector, Ms Janine Townsley, made on 14 December 2017 whereby she allowed an appeal against a refusal by the First Interested Party to grant planning permission to the Second Interested Party pursuant to section 73 of the 1990 Act. The application proceeds with the permission of Holgate J. There is a single ground of challenge (albeit comprised of two components). It is argued that the Inspector should not have allowed the appeal because she had no power under section 73 to amend a condition pursuant to which a prior planning permission had been granted which had the effect of directly contradicting the description of the development permitted in that earlier permission. Further or alternatively, the Claimant asserts that the Inspector failed to consider at all (as she should have done in accordance with established legal principles) whether the application before her constituted a ``fundamental alteration'' of the prior permission.

    Relevant Background

  2. By an application made on 21 January 2016 the Second Interested Party applied to the First Interested Party for planning permission for:-

    ``Installation and 25 year operation of two wind turbines, with a tip height of up to 100m, and associated infrastructure including turbine foundations, new and upgraded tracks, crane hardstandings, substation, upgraded site entrance and temporary construction compound upon a site situated to the north of the village of Rhydcwmerau, Carmarthenshire''.

    The Second Interested Party resolved to grant permission; by a notice dated 8 March 2016 it granted full planning permission ``for the development proposed by you as shown on the application form, plans and supporting documents''. The permission granted was conditional; in total there were 22 conditions.

  3. Condition 2 provided that the development was to be carried out in accordance with a number of approved plans and documents which were specified. One such was a ``figure'' described as ``3.1 Typical Wind Turbine Elevation 1:500 @ A3''. It is common ground that this showed a wind turbine with a tip height of 100m.

  4. By an application dated 5 August 2016 the Second Interested Party applied to the First Interested Party for the ``removal or variation'' of condition 2 of the planning permission. In answer to the question ``Please state why you wish the condition(s) to be removed or changed'', the Second Interested Party wrote:-

    ``To enable a taller turbine type to be erected''.

    In answer to the question ``If you wish the existing condition to be changed, please state how you wish the permission to be varied'', the Second Interested Party replied:-

    ``To supersede 3.1 with 3.1a''.

    The application was supported by figure 3.1A. It made it clear that the Second Interested Party was seeking the variation so as to permit tip heights for the turbines of up to 125m. By notice dated 13 March 2017 the First Interested Party refused the variation sought. Three detailed reasons for refusal were cited. In summary, the view of the First Interested Party was that the proposed increase in the tip height of the turbines would have an unacceptable impact upon the landscape and would be contrary to local planning policy.

  5. It is worth noting at this stage that the First Interested Party did not refuse the variation sought on the basis that it had no power to grant it under section 73 of the Act. Indeed, it seems clear that the Interested Parties had discussed, in advance of the application, the most appropriate method by which the Second Interested Party could pursue an application for the variation and an application under section 73 was considered to be the appropriate way forward.

  6. The Second Interested Party appealed against the First Interested Party's refusal to vary the condition. The appeal proceeded by way of a hearing.

  7. The Claimant made a written objection to the appeal. He objected on the ground that the increase in tip height would have an adverse effect upon his residential amenity. There was also a written objection on behalf of an organisation called ``VAST'' (Villages Against Supersized Turbines). In its written objection VAST made the point:

    ``Our legal advice, based on case history, is that it is not sufficient for the Appellant to argue that this is still a two-turbine wind development, because the dimensions they are proposing are fundamentally different''.

  8. In advance of the hearing the First Interested Party submitted a detailed statement of case. At paragraph 5.2 the First Interested Party wrote:-

    ``5.2 The extant permission that relates to the site (W/31728 refers) consented to two turbines each measuring 100m to blade tip height. This comprised a 65m tower with 35m blades. The proposed amendment now means the turbine will measure 125m in height, having a 75m tower and 50m blades, thus increasing the blade diameter from 75m to 100m. The Appellant's statement consistently refers to the proposed turbine dimension amendment as a `25m increase in height'. However, it is evident that the increase in turbine dimensions [tip height, blade length and tower proportions] would result in effects greater than solely an increase in 25m in blade tip height. The new turbine model would result in:

    43% increase in blade length

    40% increase in rotor diameter

    104% increase in blade swept area

    The blade swept area being centered 10m higher.

    Figure 1 in Appendix 1 shows a comparison between the two turbine models and emphasises the difference in dimension not only in height but blade swept area. The Inspector is requested to have regard to this diagram when assessing the overall landscape and visual impacts of the scheme as this provides a useful visualisation''.

  9. Nowhere in its written submissions did the First Interested Party suggest that the Inspector, on appeal, had no power to grant the variation sought.

  10. In her decision letter the Inspector correctly identified that she had to determine an appeal against a refusal to grant planning permission under section 73 of the 1990 Act for the development of land without complying with a condition subject to which a previous planning permission had been granted. She described the approach she should take to the appeal at paragraph 4:-

    ``4. The appeal proposal seeks to increase the height of two consented (``the consented scheme''), but not yet built, turbines from 100m to 125m. As such, my remit is to consider the effect of the additional size of the proposed scheme against that of the consented scheme. Both consented and proposed schemes are submitted by reference to candidate turbines. As such, the application seeks to carry out the development without complying with a condition which effectively limits the turbine height to 100m by its reference to a plan. It is explicit in the appellant's evidence that permission is sought for an increase in height to 125m by reference to a revised plan and that a condition to secure this should be imposed. I have proceeded to consider this appeal on this basis''.

  11. Under the heading ``Main Issues'' the Inspector wrote:-

    ``6. These are the effects of amending the height-limiting condition as set out above on:

    · the landscape character of the site and surrounding area, particularly that of the Teifi Valley Special Landscape Area (``SLA'');

    · the visual effect of the scheme, particularly on local residents and users of rights of way and publicly accessible areas; and

    · whether any harm identified in relation to the foregoing is outweighed by any additional benefits of the scheme and its contribution to renewable energy production.''

    In the remaining paragraphs of her decision letter the Inspector considered those issues in considerable detail. She did not, at least in express terms, consider the extent of her powers under section 73 of the 1990 Act.

  12. It is worth noting the terms she used in framing her decision. At paragraph 1 of the...

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