Larbrax, Leswalt, Stranraer, DG9 0RR
Wind Farm Comprising 8 Turbines Up To 110 M To Tip Together With Ancillary Infrastructure
Dumfries and Galloway Council (18/0539/FUL)
The decision on this case has been issued. The case has been dismissed and planning permission has been refused.
Ref No: PPA-170-2139
The excerpt below is taken from the the Reporter’s decision in this case.
On 22 November 2019, in its response to a further submission from the appellant, Dumfries and Galloway Council (the council) brought to my attention the consideration of the Court of Appeal for England and Wales in respect of the case Finney v Welsh Ministers & Ors published on 5 November 2019 (C1/2018/2922) (the Finney case). The Court of Appeal concluded that the planning inspector who had granted planning permission on appeal for two wind turbines on land near Esgairliving Farm, Rhydcymerau, Carmarthenshire had acted beyond her statutory powers by allowing an increase in the height of the turbines from 100 metres to 125 metres, at variance to the description of the development in the operative part of the planning permission. In summary the Court of Appeal ruled that section 73 of the Town and Country Planning Act 1990 (the 1990 Act) cannot be used to change the description of the development to which it relates. The Supreme Court, in May 2020, refused Welsh Ministers permission to appeal and consequently the Court of Appeal decision on Finney is the final word.
2. The council advised me of its view that “until such time as clarity is provided by the Scottish Government, the council would not accept an application under the terms of
section 42 of the Planning Act in the future as it is considered that the substance and description of any planning permission previously granted would be materially changed by the variation of conditions relating to stated tip heights”.
4. Circular 3/2013 ‘Development Management Procedures’ provides guidance in Scotland on section 42 applications. I find that section 73 of the 1990 Act in England and Wales and section 42 of the 1997 Act in Scotland compare favourably. Specifically, sections 73(1) and (2) of the 1990 Act and sections 42(1) and (2) of the 1997 Act are verbatim. I am satisfied that consequential textual amendments and modifications to both the 1990 Act and to the 1997 Act do not alter or diminish this equivalence for the purpose of my consideration of this appeal. Rather, I conclude that, to all intents and purposes, the practical effect of both provisions is the same.