The Appeal Court handed down judgement in the case of Finney and Welsh Ministers yesterday. The long running case involved wind turbines, where the blade tip height had been increased from 100m to 125m under a section 73 application. It has become commonplace to use S73 to vary approved drawings to authorise modifications to a permitted development, often through reference to varying the conditions attached to that permission. The case dealt with the basic matter of the change of the description of the development (from 100 to 125 metres) and whether S73 permits that.

Lord Justice Lewison following review of previous case law and S73 of the Act states : The natural inference from that imperative is that the planning authority cannot use section 73 to change the description of the development .

The judgement establishes that it is not lawful to a vary description of an approved development under an application made using the S73 of the Act.

There are still powers and remedies including the potential to use S96A “Non material amendment” powers to secure that same objective (albeit i would suggest the scope for that may be limited); or through an entirely new application for planning permission. Particularly here in Wales, the judgement may have significant consequences for varying major developments where the statutory PAC processes (which do not apply in S73 cases) will be re-triggered.

The immediate lesson? Secure professional advice early on the scale, scope and description of development.