Town and country planning – Planning permission – Wind farm – Council dismissing planning application for wind farm – First defendant secretary of state dismissing appeal – Claimant applying to quash decision – Whether first defendant disregarding benefits of proposal – Whether first defendant failing to have proper regard to new local plan – Application dismissed
The claimant applied to the second defendant council for planning permission for a wind farm development comprising up to 11 wind turbines, with attendant equipment and infrastructure, on land at Creddacott Farm, Week St Mary, Holsworthy, Cornwall. The site was 38 hectares situated 11.7 km south of Bude, and about 3.7 km from the boundary of the Cornwall Area of Outstanding Natural Beauty (AONB) and Heritage Coast. The Week St Mary Area of Great Landscape Value was about 730 m north of the site at its closest point. The planning committee refused planning permission on the basis of the unacceptable impacts on the landscape and designated heritage assets and the impacts on the living conditions of occupiers of a nearby cottage.
The claimant appealed against the refusal of planning permission under section 78 of the Town and Country Planning Act 1990. The appeal was recovered for the determination of the first defendant secretary of state pursuant to section 79 of, and para 3 of schedule 6 to, the 1990 Act because it involved a proposal of major significance for the delivery of the government’s climate change programme and energy policies. An inspector appointed by the first defendant held an inquiry and recommended that the claimant’s appeal be dismissed. The first defendant agreed with that recommendation dismissed the appeal and refused planning permission.
The claimant applied under section 288 of the 1990 Act to quash that decision contending that, in assessing the planning balance, the first defendant and the inspector had: (i) erred in law in disregarding the benefits offered by the claimant which included financial contributions to a community benefit fund, a community investment scheme open to local residents and a reduced electricity tariff open to local residents, which were material planning considerations which were not excluded by regulation 122 of the Community Infrastructure Regulations 2010; and (ii) failed to have proper regard to the newly-adopted Cornwall Local Plan and failed to determine the extent of any conflict with it.
Held: The application was dismissed.
(1) In Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] EGLR 127, Lord Carnwath warned against over-legalisation of the planning process. The courts should recognise the expertise of the specialist planning inspectors and work from the presumption that they would have understood the policy framework correctly. Inspectors were akin to expert tribunals who had been accorded primary responsibility for resolving planning disputes and the courts had cautioned against undue intervention by the courts in policy judgments within their areas of specialist competence. Recourse to the courts might sometimes be needed to resolve distinct issues of law, or to ensure consistency of interpretation in relation to specific policies. But issues of interpretation, which were appropriate for judicial analysis, should not be elided with issues of judgment in the application of that policy. Applying that guidance, the court ought to presume that both the inspector and the first defendant were well aware of the obligation, in section 70(2) of the 1990 Act and section 38(6) of the Planning and Compulsory Purchase Act 2004, to have regard to any other material considerations when deciding whether to grant planning permission. It was inconceivable that they overlooked the extensive case law in support of the proposition that planning obligations could be material considerations. Moreover, the inspector had the benefit of the submissions made on the planning obligations at the inquiry, as well as the second defendant’s committee report. Because of the interplay between material considerations arising from planning obligations and regulation 122 of the 2010 Regulations, it was appropriate for them to consider the two issues together. On a fair reading, the inspector’s statement that “bearing in mind the strictures of the Community Infrastructure Levy Regulations 2010, these are not matters to which weight can be attached in determining the appeal” was his pithy summary of his conclusion that the community benefits could not be treated as material considerations, having regard to regulation 122 of the 2010 Regulations. The inspector and the first defendant were entitled to conclude, in the exercise of their judgment, that no weight could be attached to the local tariff and the community investment scheme in determining the appeal as they were not material considerations which complied with regulation 122 of the 2010 Regulations. Their reasons were brief but adequate and the claimant had failed to establish any error of law.
(2) Bearing in mind the guidance in Hopkins Homes Ltd, it could be assumed that the first defendant well understood his obligations under section 70(2) of the 1990 Act and section 38(6) of the 2004 Act, and the primacy of the local development plan. It could not be assumed that the first defendant overlooked any aspect of the local planning policies merely because they were not specifically referred to in the decision letter. Unusually, a new local plan had been adopted after the date of the inspector’s report but before the first defendant made his decision. In the light of the new local plan, the up-to-date representations sent direct to him by the parties, representations made by the second defendant and objectors and the findings on harm to landscape and the setting of heritage assets, the first defendant was entitled to conclude that the proposal was in conflict with local plan policy; and that the claimant’s proposal was not led by the community or did not meet community needs. This was a commercial development by a limited company, not a community organisation. The proposal was not initiated or promoted by the local community and there was community opposition to it. Moreover, because of the discretionary and uncertain nature of the local tariff and community investment scheme proposals, there was no convincing evidence that they would meet the needs of members of the local community.
Jenny Wigley (instructed by Burges Salmon LLP) appeared for the claimant; Stephen Whale (instructed by the Government Legal Department) appeared for the first defendant; The second defendant and the interested party did not appear and were not represented.
Eileen O’Grady, barrister
