ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION, PLANNING COURT
Sir Wyn Williams
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DAVID RICHARDS
LORD JUSTICE ARNOLD
| JOHN LESLIE FINNEY
|- and -
|(1) WELSH MINISTERS
(2) CARMARTHENSHIRE COUNTY COUNCIL
(3) ENERGIEKONTOR (UK) LIMITED
MR R TURNEY (instructed by the Government Legal Department) for the 1st Respondent
2nd Respondent did not appear and was not represented
Mr D HARDY (Solicitor Advocate) (instructed by Energiekontor (UK) Limited) for the 3rd Respondent
Hearing date : 29 October 2019
Crown Copyright ©
Lord Justice Lewison:
"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."
"To enable a taller turbine type to be erected."
"To supersede 3.1 with 3.1a".
"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."
"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."
"(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.
(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."
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.
"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)
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 it alters the extent or the nature of the development permitted: Cadogan v Secretary of State for the Environment (1992) 65 P & CR 410.
"The original planning permission comprises not merely the description of the development in the operative part of the planning permission, in this case the erection of a dwelling, but also the conditions subject to which the development was permitted to be carried out."
"(a) carrying out development without the required planning permission; or (b) failing to comply with any condition or limitation subject to which planning permission has been granted…"
"… the grant identifies what can be done—what is permitted—so far as use of land is concerned; whereas conditions identify what cannot be done—what is forbidden."
"40,000 seat multi purpose arena, 1 food superstore & 1 variety superstore with associated small retail, service and community units, petrol filling station, multi leisure complex including restaurants, new railway and bus stations including park & ride facilities, coach park and carparking with associated landscaping, highways, pedestrian and cycle routes and canalside walk. Closure of public highway."
"a food superstore and a variety superstore"
"a food superstore and non-food variety store(s) (comprising a range of non-food A1 retail units)"
"The non-food variety store(s) shall at no time exceed six in number"
"… a fundamental inconsistency between the conditions and the description of the development contained in the notice of permission."
"… the council is able to impose different conditions upon a new planning permission, but only if they are conditions which the council could lawfully have imposed upon the original planning permission in the sense that they do not amount to a fundamental alteration of the proposal put forward in the original application."
"Whatever the planning merits of this new proposal, which can, of course, be incorporated into a new "full" application, I am satisfied that the council had no power under section 73 to vary the conditions in the manner set out above. The variation has the effect that the "operative" part of the new planning permission gives permission for one variety superstore on the one hand, but the new planning permission by the revised conditions takes away that consent with the other."
"The demolition of existing structures and the erection of an 8,000 seat community stadium, leisure centre, multi-screen cinema, retail units, outdoor football pitches, community facilities and other ancillary uses, together with associated vehicular access, car parking, public realm, and hard and soft landscaping."
"Thus, Arrowcroft (supra) in my judgment does no more than make the clear point that it is not open to the council to vary conditions if the variation means that the grant (and one has therefore to look at the precise terms of grant) are themselves varied."
" In this case, the amendments sought do not vary the permission. It is as I have already cited and there is nothing in the permission itself which limits the size of either the amount of floor space or the number of screens and thus the capacity of the multi-screen cinema. The only limitation on capacity is the stadium itself, which has to be 8,000 seats.
 It seems to me obvious that if the application had been to amend the condition to increase the capacity of the stadium that would [not] have been likely to have fallen foul of the Arrowcroft principle because it would have been a variation to the grant of permission itself but as I say, that is not the case here."
"… the 2012 permission was for 84 dwellings, whereas the 2016 permission was for 90 dwellings. Therefore… there was a fundamental inconsistency between the operative part of the decision notice and the conditions in accordance with which the development must be constructed."
".. although it may be possible for a condition to restrict what is permitted by a planning permission, for example perhaps to reduce the number of houses that can be built under it, what section 73 does not enable a planning authority to do is to increase what was applied for by way of a condition attached to a planning permission."
i) A planning authority may impose different conditions on an application under section 73 provided that they do not amount to a fundamental alteration of the proposal put forward in the original application; and
ii) An alteration will be fundamental if it gives with one hand and takes away with the other.
Lord Justice David Richards:
Lord Justice Arnold: