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The optimisation of clean energy planning permissions has been made more difficult. Clean energy developers may now have to stick with sub-optimal designs and consider carefully whether minor material amendment applications can appropriately be used to amend permissions if the as-built design has strayed from that which was approved.
Last November we reported on Finney v Welsh Ministers  EWCA 1868, a High Court case concerned with the lawfulness of amending a wind farm planning permission to allow an increase in height from 100m to 125m. The case concerned an application made under section 73 of the Town and County Planning Act 1990. That section allows applications to be made to amend conditions attached to an existing planning permission. The procedure is known as a minor material amendment application.
The description in the developer’s planning permission was for the installation of two 100m to tip height turbines. It has been granted by Carmarthenshire County Council. Before the turbines were installed, the developer submitted a minor material amendment application to increase the tip height to 125m. The application sought to replace a plan described in a condition with a new plan showing the increased turbine height. The application was refused by the Council but subsequently granted on appeal. The inspector concluded that the increased size of turbines had not fundamentally altered the development as originally granted. In her decision letter she confirmed that she ‘allowed the appeal and planning permission is granted for the installation and 25 years operation of two wind turbines’.
Last year the High Court had supported the Inspector and concluded that she had correctly applied the precedent case law.
The main reason for overturning the decision is that the court rightly confirmed that section 73 can only be used to amend conditions. The description of the development had been changed by the Inspector. The court’s view was that having allowed the increase in tip height the inspector had had to drop the height restriction from the description otherwise there would be a stark inconsistency between that operative part of the permission and its restrictive conditions. This, the court concluded, meant that the application had to have been for a fundamental change in the development.
Perhaps the Welsh Ministers will ask the Supreme Court to assist in defining the limits of section 73 amendments. For now the Court of Appeal’s judgment gives some clarity on its functionality. It can continue to be used to secure amendments to planning permissions so long as it is not to secure a fundamental change that that which was originally granted. If the change conflicts with operative part of the permission by way of an increase over-and-above a threshold mentioned in the description of the development, then this very likely going to amount to a fundamental change. On the other hand, in the unlikely event the application is for something less than that described in the permission, then that ought to be acceptable.
With Finney in mind, applicants for planning permission may not wish be so prescriptive in their description of the development to maintain future flexibility. Where the description is already prescriptive, the scope of amending that description through a section 96a non-material amendment could be explored first, although such scope is limited as it will not escape your attention that these are known as non-material amendment applications.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at November 2019. Specific advice should be sought for specific cases. For more information see our terms & conditions.
13 November 2019
by Fergus Charlton