In Holder v Gedling Borough Council [2016] EWHC 3095 (Admin), Green J rejected a challenge to the grant of permission for a 50 metre high wind turbine on a farm within the green belt adjacent to a bridleway. Without very special circumstances (“VSC”), the development would have been inappropriate and unacceptable. The authority concluded that there were VSC based on carbon offsetting, contribution to existing (farm) revenues and landscape mitigation measures which would confer a landscape character and ecological benefit in their own right.
The judge refused to quash the decision on the grounds that the carbon offsetting contribution from the turbines could be taken into account as one of several VSC. He also held that the fact that the turbine revenues would be passed through a corporate structure not directly tied to the farm business did not mean the planning committee was wrong to treat them as supporting rural diversification capable of contributing to the VSC balance. The “practical reality” and substance took precedence “over form” in relation to the council’s pragmatic view of the way that the farm ownership and business was run.
The council was also, in the circumstances, entitled to treat landscape mitigation works (which would mitigate only some of the visual harm from the turbines, but also provide landscape character and ecological enhancements) as a discreet benefit forming part of the overall VSC. There was no restriction on mitigation performing that dual function and role.
On the facts, it was appropriate to consider alternatives to the scheme within the site to achieve the developer’s same ultimate business objective (ie profit). The authority had been entitled to conclude on the substantial evidence before it that there was no less harmful alternative in that sense.
Finally, the 18 June 2015 written ministerial statement (“WMS”) on wind energy developments should not be interpreted as allowing “vocal minority populism” to trump democratic localism. The policy position in the WMS did not – and could not – displace the planning committee’s role in taking into account objectors’ views and then balancing and reconciling competing arguments in a way that “reflects real democratic decision making” rather than a system where the “most populous or the loudest group of protestors is able to override the “silent majority” and reduce “probative value” to “a function of degrees of ardour”.
The decision has wider significance for green belt development in confirming that mitigation only partially offsetting green belt harm may still be weighed in the balance as part of the VSC for schemes that will often need all the help they can get in surmounting the green belt hurdle.
Roy Pinnock is a partner in the planning and public law team at Dentons
