Finney v Welsh Ministers

Factual and Procedural Background

An application was made under section 288 of the Town and Country Planning Act 1990 ("the Act") seeking to quash a decision by a Planning Inspector who allowed an appeal against a refusal of planning permission. The appeal related to an application under section 73 of the Act to vary a condition of a prior planning permission. The original permission, granted to Company B by the First Interested Party, was for the installation and 25-year operation of two wind turbines with a tip height of up to 100m and associated infrastructure. The permission was conditional, including a condition specifying approved plans showing turbines of 100m tip height.

Subsequently, Company B applied to vary the condition to allow taller turbines with tip heights up to 125m. The First Interested Party refused this variation citing unacceptable landscape impact contrary to local planning policy. Company B appealed this refusal, and the Planning Inspector allowed the appeal, granting permission subject to a revised condition specifying the taller turbines.

The Claimant objected to the appeal, arguing that the Inspector lacked power under section 73 to amend the condition in a way that contradicted the original permission's description and that the Inspector failed to consider whether the variation constituted a fundamental alteration to the original permission. The application to quash the Inspector's decision proceeded with permission of the court.

Legal Issues Presented

1. Whether the Planning Inspector had the power under section 73 of the Town and Country Planning Act 1990 to vary a condition of a prior planning permission in a manner that directly contradicts the description of the development permitted in the original permission.
2. Whether the Inspector failed to consider if the application for variation constituted a "fundamental alteration" of the original planning permission, as required by established legal principles.

Arguments of the Parties

Claimant's Arguments

• The Inspector lacked power under section 73 to allow the appeal because the variation to the condition contradicted the original permission's description of the development.
• The Inspector failed to consider whether the proposed variation constituted a fundamental alteration to the original planning permission, which should have led to refusal.

Defendant and Second Interested Party's Arguments

• The law is accurately stated in the principle from R v Coventry City Council, ex p. Arrowcroft Group plc that a condition may be varied under section 73 only if it could lawfully have been imposed on the original permission and does not amount to a fundamental alteration of the original proposal.
• The First Interested Party could have lawfully granted the original permission subject to the varied condition approved by the Inspector.
• The variation approved by the Inspector did not amount to a fundamental alteration of the original development proposal.
• Although the Inspector did not expressly state consideration of the fundamental alteration issue, it is clear from the decision letter as a whole that she addressed it and concluded the variation was not fundamental.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Coventry City Council, ex p. Arrowcroft Group plc [2001] PLCR 7	Section 73 allows variation of conditions only if they could lawfully have been imposed on the original permission and do not amount to a fundamental alteration of the original proposal.	The court accepted this as the leading authority on the scope of section 73 and applied its principle to assess whether the Inspector's variation was lawful.
R (Wet Finishing Works Ltd) v Taunton Deane Borough Council [2018] PTSR 26	Confirmed Arrowcroft principle; held that a section 73 variation can be lawful even if it necessitates variation to the terms of the original permission, provided it is not a fundamental alteration.	The court relied on this decision as persuasive authority supporting a flexible application of section 73 and rejected an overly technical approach.
R (Vue Entertainment Ltd) v City of York Council [2017] EWHC 588 (Admin)	Reaffirmed Arrowcroft; held that conditions cannot be varied under section 73 if the variation means the grant itself is varied; considered fundamental alteration in context of the permission as a whole.	The court distinguished parts of this decision, rejecting the proposition that any variation changing the terms of grant is impermissible, emphasizing a contextual and flexible approach.
Pye v The Secretary of State for the Environment & Anor [1999] PLCR 28	Background and principles for interpreting section 73; approved in subsequent case law.	Referenced as foundational authority supporting the principles applied in Arrowcroft and Wet Finishing Works.
R v Leicester City Council ex p. Powergen UK Ltd [2000] 81 P&CR 5	Approved Sullivan J’s reasoning in Pye regarding section 73.	Supported the consistent line of reasoning on the ambit of section 73 applied by the court.

Court's Reasoning and Analysis

The court began by confirming the leading principle from Arrowcroft that a local planning authority may vary conditions under section 73 only if such conditions could lawfully have been imposed on the original permission and do not amount to a fundamental alteration of the original proposal. The court reviewed the recent decisions of Singh J in Wet Finishing Works and Collins J in Vue Entertainment, noting that Singh J applied the Arrowcroft principle with a flexible approach, allowing lawful variation even if the terms of the original permission must be varied to remain consistent with the condition.

The court rejected Collins J’s broader proposition that any variation altering the terms of the grant is impermissible, concluding that this was not part of the ratio of that decision. Instead, the court endorsed Singh J’s approach as persuasive authority, emphasizing that an inflexible, over-technical reading of section 73 would be inappropriate.

The court then considered whether the condition approved by the Inspector constituted a fundamental alteration to the original planning proposal. Although the Inspector did not expressly address this issue, the court found that the decision letter demonstrated a meticulous comparison between the original and proposed developments, including detailed consideration of differences and impacts.

It was inferred that the Inspector must have considered and concluded that the variation did not amount to a fundamental alteration. The court acknowledged that a different interpretation was possible but found no basis to quash the decision because it was highly likely that the outcome would not have been different even if the issue had been expressly addressed.

Holding and Implications

The court DISMISSED the application to quash the Inspector’s decision.

The decision confirms that under section 73 of the Town and Country Planning Act 1990, conditions may be varied provided they could lawfully have been imposed on the original permission and do not constitute a fundamental alteration of the original proposal. The court endorsed a flexible and practical approach to the interpretation of section 73, rejecting an overly technical and rigid application. The court also held that the failure to expressly consider whether a variation constituted a fundamental alteration did not warrant quashing the decision where it was clear from the overall decision that the issue was effectively considered. No new precedent was established beyond the application and clarification of existing principles.