Advice Note on Considerations for Applications Under Section 42 of the Town and Country Planning (Scotland) Act 1997 in Light of Finney v Welsh Ministers & Ors

1. Introduction

In Finney v Welsh Ministers & Ors [2019] EWCA Civ 1868 (“Finney”), the Appeal Court of England and Wales considered the validity of an application under Section 73 of the Town and Country Planning Act 1990 (equivalent of a Section 42 application in Scotland) in circumstances where the proposed changes to conditions would also require a change to the description development.

In this case, an application had been submitted to permit a tip height increase from 100m to 125m. The description of development in the original planning permission permitted the “installation and 25-year operation of two wind turbines, with a tip height of up to 100 metres, and associated infrastructure.” In these circumstances, the Court of Appeal found that:-

“Section 73(1) is on its face limited to permission for the development of land “without complying with conditions” subject to which a pervious planning permission has been granted… On receipt of such an application section 73(2) says that the planning authority must “consider only the question of conditions”. It must not, therefore, consider the description of the development to which the conditions are attached. The natural inference from that imperative is that the planning authority cannot use section 73 to change the description of the development.”

The Supreme Court recently (19 May 2020) refused the Welsh Ministers’ application to appeal the decision. With no further route of appeal, it is now settled in England and Wales that Section 73 of the Town and Country Planning Act 1990 may not be used to amend the description of development or impose a condition which would be inconsistent with the description of development.

2. Implications of Finney in Scotland

The position in Scotland in light of Finney is currently unclear. While the decision is not binding in Scotland, the wording of Section 42 of the Town and Country Planning (Scotland) Act 1997 mirrors that of the s73 of the Town and Country Planning Act 1990, the English and Welsh equivalent. It is therefore likely to be highly persuasive.

However, the issue has not been brought before the Scottish courts nor have the Scottish Ministers issued a decision which suggests the same approach is to be followed in Scotland. While the applicability of Finney in Scotland remains untested, it continues to be competent for a planning authority to grant an application which alters the description of development. It should however be noted that the risk of a challenge to any such permission is significantly increased.

While it may still be competent to allow such applications, we consider that there is a high risk of Section 42 applications which are already in the planning system being refused if the proposed changes conflict with the existing description of development. In these circumstances, the decision may be appealed to the Scottish Ministers. This would bring the issue before the Scottish Ministers and allow them to decide on the scope of Section 42 applications in Scotland.

If the Scottish Ministers were to follow the approach in Finney, it may be possible to appeal to the Court of Session. While there is an argument to be made that Scottish authorities have developed the law in a way which does not restrict Section 42 applications in the way Finney does, it may be difficult to persuade the Court to depart from the now settled position in England and Wales. The Supreme Court, the highest court in the United Kingdom, refused permission to appeal Finney because it did not consider the appeal raised an arguable point of law. This is likely to be highly persuasive.

It should be noted that Finney does not impose a blanket prohibition on the use of Section 42 applications. We are aware that in light of Finney, some planning authorities are refusing to validate Section 42 applications where there would be no conflict with the description of development. Our view is that this approach is wrong. On the contrary, the decision in Finney actually confirms that the equivalent of a Section 42 application may be used to secure a tip height increase, albeit only in circumstances where there would be no conflict with the description of development.

While the position in Scotland will remain unclear until the issue is tested, it would seem that is may be the end of the road for Section 42 applications where the description of development would require to be altered. Some steps which developers can take to mitigate against this are discussed below.

3. Minimising the Possible Impact of Finney

Permission in Less Specific Terms

In order to allow for future Section 42 applications, developers should seek permission in less specific terms. When submitting a planning application, the description of development should permit, for example, the erection of a wind farm consisting of up to a specified number of turbines and associated infrastructure at a specified location.

Specific details such as turbine tip height can instead be secured by condition to ensure that the consented development falls within the parameters of the Environmental Impact Assessment Report (“EIAR”). This approach offers certainty as to the permitted tip height, while retaining the flexibility to subsequently alter the height by way of a Section 42 application if required.

We are aware that planning authorities often seek to alter the description of development, opting for a more prescriptive approach. We do not consider that this is something which planning authorities are entitled to do. The description of development is determinative of what is being applied for and should therefore not be altered by the planning authority. If the planning authority does not consider the description to be sufficient, it should refuse to validate the application in the first place.

The case of Cumming v Secretary of State for Scotland 1993 S.L.T. 228 provides guidance on what is required to be contained within the description of development. According to the Court, the description of development must be accurate, convey the substance of what is being applied for and give fair notice to the planning authorities, interested parties and the general public of the grant which the applicant hopes to obtain. It would seem reasonable to conclude that this test can be met without including specific details such as tip height; particularly given that it is not uncommon for permission to be granted on such terms.

Non-Material Variation

In theory it may be possible to delete reference to specific details (e.g. tip height) in the description of development by way of a non-material variation. Once the reference to the specific detail has been removed, it would then be possible make an application under s.42 to vary the relevant conditions in the usual way.
One limitation of this approach (which only arises in Scotland) is that Section 64 of the Town and Country Planning (Scotland) Act 1997 does not permit non-material variations to permissions which are issued by the Scottish Ministers (e.g. on Appeal or following call-in). This potential solution is therefore only available to permissions which have been issued by a planning authority.

By its very nature, an application for a ‘non-material’ variation must be for a very minor change to the permission. It would seem unlikely that amending the operative part of a planning permission, particularly in relation to a contentious aspect such as tip height, would be classed as such. However an amendment which simply seeks to delete certain words (as opposed to including new words e.g. a new tip-height) does not in itself lead to a variation in the development which is permitted. There may still be conditions which control the scope of the development. There are some decisions which suggest that planning authorities may be prepared to alter the description of development in certain circumstances:-

• Druim Leathann Wind Farm (Comhairle Nan Eilean Siar (13/00215) - 11 December 2015) – reference to the maximum generating capacity of the wind farm contained within the description of development was increased from 42MW to 46.2MW by way of a non-material variation.

• Muirake Wind Farm (Aberdeenshire Council (APP/2009/3565) – 8 September 2010) – the maximum tip height referred to in the description of development did not match what was applied for. In order to correct this error, the maximum tip height specified in the description was increased from 98.14m to 99.5m by way of a non-material variation.
It should also be noted that there is no right of appeal against the refusal of an application for a non-material variation. A non-material variation is therefore unlikely to be a viable solution unless the planning authority is on board and supportive of the development. The decision as to whether something is a material variation or not is a pure planning judgement and therefore one which the Courts would be unlikely to interfere with in any challenge.

Fresh Permission

If the description of development cannot be altered by way of a non-material variation, the remaining option may be to apply for a fresh permission.

The main advantage of a Section 42 application over a fresh application is the cost saving. The application fee for a fresh application could be in the region of £125,000, compared to £250 for a Section 42 application. However, if a planning authority is going to be difficult about a Section 42 application there may be the need for protracted correspondence, a legal argument and subsequent appeal. This will quickly see the cost saving start to diminish.

Another advantage of a Section 42 application is that there is no need for a pre-application consultation period (minimum 12 weeks). Beyond this initial time saving, the determination period for a Section 42 application can often be the same as that for a fresh application.

4. Conclusion

While the position in Scotland is unclear, the potential to alter a planning permission (such as an increase tip height) by way of a Section 42 application may be limited to situations where the proposed alteration would be consistent with the description of development.

If this approach is confirmed in Scotland, there may be some limited circumstances where descriptions of existing permissions could be altered by way of a non-material variation. However, in many cases a fresh application may be required. In terms of future applications, developers should allow for flexibility by paying close attention to the drafting of the description of development.

We are aware of one current appeal to Scottish Ministers (PPA-170-2139) where the issues raised in Finney are engaged. We hope to be able to provide further advice on the approach to be followed in Scotland following the issue of this decision notice, which is expected shortly.