In Goring-On-Thames Parish Council v South Oxfordshire District Council and another [2016] EWHC 2898 (Admin), Cranston J refused to quash the grant of permission for a 107KW hydropower installation at Goring Weir, despite technical gaps in the consideration of the scheme.
The weir is in a conservation area and an area of outstanding natural beauty, and opposite listed buildings. The duties to give considerable importance and weight to any harm to the setting of listed buildings or character and appearance of the CA (Sections 66 and 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990) were engaged. The duty to have regard to the purpose of protecting AONB when taking decisions (Section 85 of the Countryside and Rights of Way Act 2000) was also in play.
The scheme had evolved, but visual impact remained an issue. Applying noise policies relating to residential amenity, the authority did not consider the issue of AONB tranquility. In the absence of noise objections, the authority was held to have been entitled to find no harm to the protected tranquility of the AONB for CRoW or NPPF 115 purposes. If the noise element of the claim was brought on an illegality (failure to have regard to noise) rather than a Wednesbury irrationality basis, it may have succeeded.
The authority did fail to give “special priority” to harm to the conservation area (simply concluding that the less-than-substantial harm was outweighed by the public benefit of renewable energy generation). Nothing in the committee report allowed an inference that it had complied with the statutory duties (Mordue v Secretary of State for Communities and Local Government [2015] EWCA Civ 1243).
The authority screened out EIA under the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, on the basis that the generation threshold for hydroelectric energy installations was not exceeded. It failed to recognise that development in Schedule 2 requires EIA where any part is in a “sensitive area” (which includes AONB).
Nonetheless, the judge refused to quash the permission. It was highly likely that the outcome would not have been substantially different if the council had applied the correct heritage test (Section 31 of the Senior Courts Act 1981). The harm was “at most, minor harm” and the “factors weighing in favour of the grant of planning permission were weighty” such that there was “simply no prospect that this issue would make any difference” to the overall planning balance. The screening defect would also have made no difference the screening decision or the overall level of information considered by the authority (applying Walton v Scottish Ministers [2012] UKSC 44).
Roy Pinnock is a partner in the planning and public law team at Dentons
