Planning permission – Wind turbine – Material considerations – First respondent local authority granting planning permission for wind turbine on recommendation of planning officer – Whether first respondents’ planning officer properly advising on material considerations – Whether wrongly advising that certain matters not material – Appeal allowed
The second respondents proposed to install a wind turbine, with a maximum ground to tip height of 66m, on their farm within the green belt near the village of Woodborough, Nottinghamshire. The new turbine was intended to replace two smaller turbines for which planning permission already existed. The first respondent council adopted a screening opinion to the effect that no environmental impact assessment (EIA) was required for the new turbine and subsequently granted planning permission for it in the face of objections from local residents, including the appellant. The first respondents accepted the recommendation in their planning officer’s report that very special circumstances, of both an economic and environmental nature, existed so as to justify the inappropriate development in the green belt within the meaning of PPG 2.
The appellant brought judicial review proceedings to challenge the lawfulness of the planning permission. One of his grounds of challenge was that the first respondents had erred in accepting the advice of the planning officer that various matters, including the possible effect of planning permission as setting a precedent, the availability of alternative sites or alternative methods of generating energy, and the inefficiency and low energy production of the proposed turbine, were “non-material planning issues”.
Rejecting that argument, the judge held that there was nothing to preclude a planning officer from giving guidance and advice to a local planning authority as to what considerations were material to the specific planning application under consideration; he held that such guidance, if soundly based, could help the decision-maker to concentrate on the matters that were important and determinative rather than be distracted by matters which, while hypothetically relevant, had no real bearing on the final decision in the particular case: see [2013] EWHC 1611 (Admin); [2013] PLSCS 135. The appellant appealed.
Held: The appeal was allowed.
(1) The materiality of the disputed matters in the instant case depended on their potential to have a legitimate bearing on the ultimate decision. Risk of creating a precedent was a potentially material consideration. In principle, a grant of planning permission might set a precedent for further developments of the same character and, in particular, a grant of planning permission for development in the green belt based on very special circumstances might create a precedent for future applications in the same area: Collis Radio Ltd v Secretary of State for the Environment (1975) 29 P&CR 390; [1975] 1 EGLR 146; (1975) 234 EG 905 and Doncaster Metropolitan Borough Council v Secretary of State for the Environment [2002] EWHC 808 (Admin); [2002] JPL 1509; [2002] 16 EG 181 (CS) applied.
Construing the planning officer’s advice as a reasonable planning decision-maker would understand it, it contained no suggestion that precedent, while a potentially material consideration, merited little or no weight in the particular case. The planning officer had provided the first respondents with a list headed “Non-material Planning Issues” in the exacting context of an inappropriate development in the green belt, which needed to be justified by very special circumstances, In that context, the first respondents would understand the wording that followed as meaning that precedent was, as a matter of law or policy, of no materiality whatsoever, not that the circumstances of the particular proposed development were such that they reduced to zero the materiality that it might otherwise have had. The advice should not have been expressed in that way. In a case where the bar was set as high as “very special circumstances”, the advice that precedent was incapable of achieving material consideration status was simply wrong. A grant of planning permission in relation to the proposed wind turbine would undoubtedly be advanced as a precedent in relation to a similar application in the same area and it was significant that the features said to constitute “very special circumstances” were essentially generic features that could be claimed in relation to comparable sites.
(2) Alternatives to the proposed development were likewise capable of being material considerations. While it was not necessary to dwell on alternative sites outside the green belt, in circumstances where the second respondents were only interested in development on their own farm, alternatives on the same site were potentially relevant. In a case concerning inappropriate development within the green belt, which could only be justified by “very special circumstances”, the availability of comparable but less intrusive forms of energy production was a material consideration. The fact that very special circumstances had been found in relation to the two significantly smaller turbines, which were sufficient to meet the needs of the farm, did not mean that very special circumstances would also attach to the single significantly larger wind turbine in a different position within the farm. It was a legal error to treat as immaterial the fact that other alternative methods of producing reasonable energy existed. That was a factor for the first respondents to weigh in the balance.
(3) The efficiency of the proposed turbine was also material. It could not be said that, having regard to the full range of applicable policy, matters such as volume and efficiency were irrelevant and could be left to the working of the market. The proposed turbine was, by definition, inappropriate development, which could be justified only by very special circumstances. Any consideration of such circumstances had necessarily to embrace an assessment of the benefit that was likely to ensue. Size, efficiency and ability to meet need were all considerations relevant to the issue of “very special circumstances” and it was legally erroneous to advise the first respondents to the contrary.
(4) This was not a case in which was appropriate to stop short of quashing the planning permission in the exercise of the court’s discretion. The court could not conclude that, had the first respondents’ decision not been vitiated by the errors of law in the planning officer’s advice, there would have been no real possibility of a different outcome or that the decision would have been the same. It was for the first respondents, not the court, to assess whether there were very special circumstances in a case in which the answer was not self-evident and there was a real possibility of a different outcome. It was not possible to say that the first respondents would now, having had regard to all current material considerations, grant retrospective permission for the development. Nor did the interests of justice require that the permission should be upheld, notwithstanding the passage of time since it was granted and the fact that the second respondents had now implemented it and erected the turbine. Although it was regrettable that the case had taken so long to reach the appeal court, the second respondents had chosen to erect the turbine at a time when they were aware that the appellant was seeking to appeal the earlier order. While it would be detrimental and damaging to them to have to remove the turbine, they had to be assumed to have appreciated the risks. Planning permission was not simply a private matter but was a decision of a public authority in discharge of statutory obligations, the purpose of which was to serve the public interest. There was no good reason why, in the instant case, the successful appeal establishing the legal invalidity of the planning permission should leave the appellant without the normal fruits of success: Bolton Metropolitan Council v Secretary of State for the Environment (1990) 61 P&CR 343; [1990] EGCS 106 and Simplex GE (Holdings) Ltd v Secretary of State for the Environment [1988] 3 PLR 25 applied.
Richard Harwood QC (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the appellant; Richard Kimblin and Hashi Mohamed (instructed by the legal department of Gedling Borough Council) appeared for the first respondents; Victoria Hutton (instructed by Wilkin Chapman LLP, of Lincoln) appeared for the second respondents.
Sally Dobson, barrister
