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High Court allows 33% increase in wind turbine energy generation capacity

The High Court recently considered whether increasing the tip height of two wind turbines by 25 metres fell within the scope of the section 73.

If a planning permission can be amended using the section 73 procedure, it can save developers the time and costs involved in applying for a fresh planning permission. However, what type of amendments can be made using section 73 is not clear cut. 

What is the section 73 procedure?

The section 73 procedure is an application to the local planning authority to either amend or remove planning conditions imposed on planning permissions.  If approved, the authority grants a new permission containing the amended conditions.

This section 73 procedure is often described as a minor material amendment application.  It is one of the two ways of securing an amendment to a planning permission.  The other is a section 96a or non-material amendment application.  This is not restricted to considering amendments to conditions but is constrained by the need for the change not to be material.

Finney v Welsh Ministers v Carmarthenshire County Council

In the recent case, Carmarthenshire County Council approved planning permission for two 100 metre tip high wind turbines.  Condition 2 of that planning permission described the approved plans, one of which was a drawing showing the 100 metre height of the turbines. Prior to installing the turbines the developer applied under section 73 of the Town and Country Planning Act 1990 to amend the drawing approved by condition 2 to 125 metre turbines.

Carmarthenshire refused to amend the permission and the developer successfully appealed.  In the course of the appeal the inspector considered the impacts arising from the proposed increase to 125 metres. She considered the effect of the landscape character, visual impact and generally whether the harm outweighed the benefits of the scheme. The increase in tip height would result in an increased contribution to renewable energy production.

A local campaigner against the wind farm challenged the inspector's decision in the High Court.  The challenger asserted that the section 73 procedure could not be used to change a condition where that change had the effect of contradicting the description of the development. The challenger asserted that the increase from 100 metres to 125 metres was a fundamental alteration of the planning permission which was outside the scope of the section 73 procedure.

The Judge's conclusions on the scope of section 73

This is not the first judgment to consider the scope of section 73 applications. The courts have already established that the section 73 procedure is a flexible tool for developers but there are limits.  Section 73 cannot be used to impose a new or amended condition that could not have lawfully been imposed in the original planning permission, and it would be unlawful to impose a condition that fundamentally altered the proposal put forward in the original application. 

Examples of what amount does not amount to a fundamental change include:

  • Changing a housing development from 84 to 90 dwellings;
  • Increasing the floor space of a superstore from 10,000 to 13,000 square metres;
  • Increasing a multiplex cinema from 10 to 13 screens.

These changes were not 'fundamental' because they resulted in a development that was consistent with the original grant. 

However, if a new permission was inconsistent with the nature of the approved development, that would be a fundamental change which would be unlawful.

In this case the court concluded that increasing tip height by 25 metres was not fundamental and therefore the section 73 process was applicable and that the inspector's approval stood. The result was a 33% increase in energy generation.

Consequences for developers wishing to redesign their approved schemes

The section 73 procedure offers developers the opportunity to consider how their designs can be improved. The starting point is to consider whether the requested amendment will fundamentality change the development. This is likely to depend on the facts of the development. 

One other learning point to take away from this case is that when determining a section 73 application a decision maker should expressly consider whether the application falls within the scope of section 73. In Finney there was no such express consideration and the judge had to imply one: it would be wise not to rely on the courts to do this.

TLT has extensive experience in dealing with the planning aspects of renewable energy schemes. If you would like more information, please get in touch.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at November 2018. Specific advice should be sought for specific cases. For more information see our terms & conditions.

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