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On 5 November, the Court of Appeal (Lewison, David Richards & Arnold LJJ) handed down judgment in Finney v Welsh Ministers [2019] EWCA Civ 1868. A developer had been granted conditional planning permission to construct two wind turbines. The description of development in the permission specified that the turbines were to have a height of 100m. One of the conditions required the development to be carried out in accordance with specified plans. The developer then applied under s.73 of 1990 Act to vary this condition to insert plans showing turbines with a height of 125m. This application was allowed on appeal by the Welsh Ministers. The Appellant challenged this decision in the High Court on the ground that the grant of permission was ultra vires because the imposition of this condition would require a change to the height specification in the description of development. The claim was dismissed by Sir Wyn Williams (sitting as a High Court Judge). However, this decision was reversed by the Court of Appeal, which has held that s.73 may not be used to obtain a varied planning permission when the change sought would require a variation to the terms of the “operative” part of the permission. This is arguably the most significant decision relating to this commonly-used power since R v Coventry City Council, Ex P Arrowcroft [2001] PLCR 7 and will be of considerable interest to practitioners. Ben Fullbrook acted for the Appellant, instructed by Leigh Day Richard Turney acted for the First Respondent, instructed by the Government Legal Department
