Case law cited in refusal of taller turbines

A ten-metre increase in the height of eight previously permitted wind turbines in south-west Scotland would result in a different development, a reporter has decided.

The appellants sought permission to increase the blade tip height of the 100-metre turbines authorised at the coastal site by varying a condition specifying their dimensions, after discovering that the originally specified turbines were no longer manufactured. The pivotal issue in the appeal concerned the lawfulness of using an application under section 42 of the Town and Country Planning (Scotland) Act 1997 to authorise this variation.

The reporter found compelling similarities between section 42 and English and Welsh legislation in section 73 of the Town and Country Planning Act 1990. This led him to conclude that the Court of Appeal decision in Finney v Welsh Ministers and Others [2019] concerning a similar proposal in Wales was relevant to Scottish law and hence to his decision. In Finney, the court had ruled that section 73 could not be used to change the original description of the development, which included the height of the turbines.

The reporter concluded that the proposed ten per cent increase in the height of the consented turbines would harm an area of regional landscape importance and was therefore a material change from the operative description of the development permitted, which indicated turbines of a lower height. On that basis, he dismissed the appeal.

Reporter: Chris Norman; Written representations

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