John Leslie Finney v Welsh Ministers
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice David Richards,Lord Justice Arnold |
| Judgment Date | 05 November 2019 |
| Neutral Citation | [2019] EWCA Civ 1868 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2018/2922 |
| Date | 05 November 2019 |
[2019] EWCA Civ 1868
Lord Justice Lewison
Lord Justice David Richards
and
Lord Justice Arnold
Case No: C1/2018/2922
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION,
PLANNING COURT
Sir Wyn Williams
CO/1281/2018
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr B Fullbrook (instructed by Leigh Day) for the Appellant
Mr R Turney (instructed by the Government Legal Department) for the 1 st Respondent 2 nd Respondent did not appear and was not represented
Mr D Hardy (Solicitor Advocate) (instructed by Energiekontor (UK) Limited) for the 3 rd Respondent
Hearing date: 29 October 2019
Approved Judgment
The issue on this appeal concerns 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.
On 21 January 2016 Energiekontor (UK) Ltd applied to Carmarthenshire CC for planning permission for development described as:
“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.”
On 8 March 2016 Carmarthenshire 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. 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 100 metres.
A few months later, on 5 August 2016, Energiekontor applied under section 73 of the 1990 Act to Carmarthenshire 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”, Energiekontor 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”, Energiekontor replied:
“To supersede 3.1 with 3.1a”.
The application was supported by figure 3.1A. It made it clear that Energiekontor was seeking the variation so as to permit tip heights for the turbines of up to 125 metres.
That was, of course, higher than the development described in the original planning permission which granted permission to install and operate a turbine “with a tip height of up to 100m”. Carmarthenshire refused to grant the requested permission. Energiekontor appealed to the Welsh Ministers against that refusal. The inspector appointed to determine the appeal set out her approach to the appeal as follows:
“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.”
She went on to consider a number of planning objections to the proposed increase in height. In a careful decision letter, she rejected them all. She concluded:
“The appeal is allowed and planning permission is granted for installation and 25 year operation of two wind turbines, and associated infrastructure including turbine foundations, new and upgraded tracks, crane hard standings, substation, upgraded site entrance and temporary construction compound (major development) at land to the north of Esgairliving Farm, Rhydcymerau in accordance with the application Ref W34341 dated 5 August 2016, without compliance with condition number 2 previously imposed on planning permission Ref W/ 31728 dated 8 March 2016 and subject to the conditions set out in the schedule attached to this decision.”
Those conditions included condition 2 which required that the permitted development should be carried out in accordance with plans which included “Figure 3.1A Typical Wind Turbine Elevation 1:500 @A3 dated August 2016”. The turbine shown on those plans was 125 metres high. It will be immediately apparent that in the description of the permitted development the words “with a tip height of up to 100m” contained in the original grant have been excised.
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. The only power was to vary the conditions attached to that development as described. Sir Wyn Williams rejected that challenge, noting that the point had not been raised before the inspector.
Section 73 of the 1990 Act provides:
“(1) This section applies, subject to subsection (4), to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted.
(2) On such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted, and
(a) if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly, and
(b) if they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application.
(3) [Repealed]
(4) This section does not apply if the previous planning permission was granted subject to a condition as to the time within which the development to which it related was to be begun and that time has expired without the development having been begun.”
It is common ground that the answer to the question raised by this appeal would be the same in England as it is in Wales.
In Pye v Secretary of State for the Environment [1998] 3 PLR 72 Sullivan J explained the origin and purpose of section 73. It first entered the planning system as section 31A of the Town and Country Planning Act 1971. Before its introduction, a developer dissatisfied with a condition imposed on the grant of planning permission had no choice but to appeal. That exposed him to the risk of losing the planning permission altogether. Guidance about the policy underlying section 73 was given in circular 19/86 from which the following points emerge:
i) Its purpose was to enable an applicant to apply “for relief from any or all of [the] conditions”.
ii) The planning authority “may not go back on their original decision to grant permission.”
iii) If the planning authority decide that “some variation of the conditions” is acceptable, a new alternative permission will be created. The applicant may then choose between the two permissions.
Sullivan J's description of the origins and purpose of section 73 was approved by this court in R v Leicester City Council ex p Powergen UK Ltd (2001) 81 P & CR 5; and by the Supreme Court in Lambeth LBC v Secretary of State for Housing, Communities and Local Government [2019] UKSC 33, [2019] 1 WLR 4317. In the latter case Lord Carnwath said at [11]:
“A permission under section 73 can only take effect as an independent permission to carry out the same development as previously permitted, but subject to the new or amended conditions. This was explained in the contemporary Circular 19/86, para 13, to which Sullivan J referred. It described the new section as enabling an applicant, in respect of “an extant planning permission granted subject to conditions”, to apply
“for relief from all or any of those conditions”. It added: “If the authority do decide that some variation of conditions is acceptable, a new alternative permission will be created. It is then open to the applicant to choose whether to implement the new permission or the one originally granted.”” (Emphasis added)
Some further points are, I think, uncontroversial:
i) In deciding on its response to an application under section 73, the planning authority must have regard to the development plan and any other material consideration. The material considerations will include the practical consequences of discharging or amending conditions: Pye at 85B.
ii) When granting permission under section 73 a planning authority may, in principle, accede to the discharge of one or more conditions in an existing planning permission; or may replace existing conditions with new conditions. But any new condition must be one which the planning authority could lawfully have imposed on the original grant of planning permission.
iii) A condition on a planning permission will not be valid if...
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