DC Casebook: Energy development - Appeals held to exceed terms of approval

Two appeals seeking variations of a condition imposed on three wind turbines in Cornwall have been ruled invalid because they proposed fundamental changes to the original consent.

The disputed condition stipulated that the turbines should not exceed 50m in height and the blades 31m in diameter. The appellants explained that changes were required to reflect technological developments. The first appeal proposed a maximum hub height of 56m and a height to blade tip of 81m. The second proposed a maximum hub height of 60m and an 84m maximum height.

Although the applications had been recommended for approval, the council's solicitor had advised that a full application was required because the proposed variations fell outside the scope of the consent. While recognising that section 73 of the Town and Country Planning Act 1990 allows conditions to be varied, the inspector referred to the ruling in R v Coventry City Council ex parte Arrowcroft Group [2000] that such amendments should not lead to rewriting the original consent.

The original application for the three turbines explicitly stated that the maximum hub height would be 50m and all the associated documents and plans assessed the impact of such a development, the inspector noted. In her opinion, the proposed variations would result in a development that differed from the original proposal.

Even if the disputed condition had not been imposed, she reasoned, it would not have been possible for the appellants to install larger turbines because the development was limited to that specified in the plans accompanying the application. The fact that the development would remain a wind farm did not detract from her conclusion that the variations would result in a fundamental inconsistency with the approved development.

DCS Number 100-064-673

Inspector Dee Burrows; Written representations


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