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Implications of the recent appeal decision for applications to increase turbine tip heights using Section 42

A recent appeal decision in Scotland has cast doubt on the ability to vary the approved height of wind turbines using the power to vary a planning permission under Section 42 of the Scottish Planning Act.  The decision relates to a proposal to increase the approved tip height of turbines at Larbrax in Dumfries and Galloway, granted planning permission in 2016. In the consent, the approved height was specified in both the description of development and a planning condition.

In his decision to reject the appeal the Reporter makes comparisons with the well-known Finney case, which concerned a proposed increase in tip heights at a Welsh site from 100 to 125m.  That case was subject to Court rulings which have confirmed that Section 73 (the equivalent to Section 42 in England and Wales) should not be used to vary the description of development, and also that the proposed variation should not fundamentally alter the nature on the development approved.

In the case of Larbrax, an increase in tip height from 100 to 110m was proposed.  The Reporter noted that in the Finney case the variation, if approved, would amount to a 25% increase in height, a significantly higher proportionate increase than that proposed at Larbrax.  However, he also held that a 10% increase in the proposed height at Larbrax would nonetheless be a material change to the description of the development.  Leaving aside comparisons with the Finney case, he made the point that under Section 64 of the Scottish Act, a planning permission may only be varied if the change sought is not material.

So, it would seem that the Finney judgment has had some effect on the operation of Section 42 in Scotland.  The Larbrax decision is but one appeal case, and not a court judgment, but the decision has implications for all types of development, not just onshore wind.  There are currently a number of similar proposals to vary the approved height of turbines using the variation powers under Section 42, and councils may well regard the Larbrax position as an important factor to take into account when deciding these applications.  However, increasing turbine tip heights can be essential in achieving an economically viable onshore wind project in a subsidy free market. Arcus can advise on the most appropriate alternative ways to take forward such changes to approved projects.