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Court of Appeal rules planning inspector exceeded powers

Words: Huw Morris
Court of Appeal / Shutterstock: 370592159

The Court of Appeal has quashed a planning inspector’s decision, ruling she went beyond her power in allowing an appeal.

The case focused on the limits of the power under section 73 of the Town and Country Planning Act 1990 to grant planning permission without complying with conditions attached to a previous permission.

Energiekontor (UK) Ltd had applied to Carmarthenshire County Council for planning permission for two wind turbines with a tip height of 100 metres north of of the village of Rhydcwmerau.

The council granted permission in March 2016 but attached 22 conditions, one of which said the development was to be carried out in accordance with approved plans and documents.

The company applied for a variation to permit heights of up to 125 metres, Carmarthenshire refused permission, Energiekontor appealed to Welsh ministers and an inspector allowed the appeal. John Finney, an objector to the scheme, brought the case.

Welsh ministers argued that section 73 allowed developers to refine proposals once they knew more about whether these are physically deliverable or financially viable. They warned “developers would be at the mercy of local planning authorities”  with differing practices about the level of detail to be specified under permitted development.

Lord Justice Lewison said if the inspector had left the description of the permitted development intact, “there would in my judgment have been a conflict between what was permitted (a 100 metre turbine) and what the new condition required (a 125 metre turbine)”.

He added: “A condition altering the nature of what was permitted would have been unlawful.That, no doubt, was why the inspector changed the description of the permitted development. But in my judgment that change was outside the power conferred by section 73.”

The Court of Appeal therefore quashed the inspector’s decision.

•  Finney v Welsh Ministers & Ors [2019] EWCA Civ 1868

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