The two claimants, Lensbury and Pinenorth, in Lensbury Ltd and another, R (on the application of) v Richmond-Upon-Thames London Borough Council and others [2016] EWHC 980 who either own or have interests in land near the site, sought to challenge the London Borough of Richmond Upon Thames’ grant of planning permission for a three-turbine electricity generation facility next to the River Thames. The Teddington and Ham Hydro Co-operative wants to build the facility at Teddington Weir, Teddington Lock, Teddington.
The claimants argued that: (1) The council failed to comply with the duty under s.38(6) of the Planning and Compulsory Purchase Act 2004; (2) The council failed properly to consider the impacts of the proposed development on heritage assets; (3) The council failed to screen the planning application under the Environmental Impact Assessment; (4) The determination of the application was procedurally unfair and the council failed to have regard to material considerations because it limited its consideration to matters relating to noise; and (5) Condition NSO1 imposed on the grant of planning permission in relation to noise was unlawful and members were misled as to its effect.
The High Court dismissed the claims. The Court held that:
(1) The absence of any express reference to s.38(6) was immaterial. It was obvious that the officers’ reports concluded that the development was in conformity with the development plan and the officers did correctly identify the principal policies which informed their assessment of the material planning issues in relation to the application;
(2) The relationship of the proposal with the adjoining heritage assets was properly addressed. The assessment of the relationship was a planning judgment for the council to take and the conclusion of the council that the proposed development would have no harmful impact on heritage assets was clear. The reasons were comprehensible and sufficient;
(3) The planning officer had been entitled to reach the conclusion – on the basis of the material before him and for the reasons he gave – that this was not a development that fell within Schedule 2 of the EIA Regulations. The council had applied its mind to the relevant provisions and had asked itself the right question and having regard to the material before it, arrived at an answer to that question which was not Wednesbury unreasonable;
(4) The judge held that it was clear that the council was aware of and took into account the representations about noise received between the two committee meetings. The council concluded that they raised no significant new issues that required re-opening non-noise issues, and that the proposal was acceptable in terms of noise (subject to conditions); and lastly
(5) The judge rejected the submission that condition NSO1 was too imprecise to be enforceable.
Martha Grekos is a partner and head of planning at Irwin Mitchell
