Town and country planning – Environment – Area of outstanding natural beauty – Conservation area – Claimants applying for judicial of defendants’ decision to grant planning permission for hydropower generation scheme – Whether defendants entitled to reach planning judgment that no harm to area of outstanding natural beauty (AONB) – Whether defendants’ failure to have special regard to desirability of preserving conservation area affecting overall planning balance – Whether reconsidering matter would lead to issue of positive screening opinion – Application dismissed
The defendant local authority granted planning permission for a scheme to generate hydropower at Goring Weir for local usage, at full capacity some 107kw. The proposed scheme was to be located within the Goring-on-Thames Conservation Area and the Streatley Conservation Area. It was also located in the Chilterns and the North Wessex Downs Areas of Outstanding Natural Beauty (AONB). The former covered 324 square miles, the latter 668 square miles.
The scheme involved demolishing part of the existing weir and installing screw turbines. The defendants’ planning officer found that there would be some harm to the character of the river and the contribution it made to the conservation area but he concluded that the impact of the scheme on the historic merits of the conservation area and its effect on the visual amenity constituted less than substantial harm, which was outweighed by the public benefit of the renewable energy generation.
The claimant parish council applied for judicial review of the decision to grant planning permission. Their challenge focused on the harm caused to the AONB and the impact of noise upon its tranquillity; the impact on listed buildings and the defendant’s failure to adopt a reasoned environmental impact assessment (EIA) screening opinion.
Held: The application was dismissed.
(1) The defendants’ assessment that there might be a degree of impact upon the conservation area was not inherently incompatible with its assessment that there might be no impact upon the AONB. There was no suggestion that the defendants had wrongly applied planning policies and the boards of the AONB had made no submission on the proposal when invited to do so. It was a classic matter of planning judgment and the defendants’ assessment that there was no harm to the AONB could not be said to be Wednesbury unreasonable. Moreover, the defendants had applied their policy on noise concerning residents as it was obliged to do. Although tranquility was one of the special qualities of AONBs, nothing said by any of the specialist consultees could be characterised as a concern with loss of tranquillity.
(2) Knowledgeable groups like the claimants had not previously raised listed buildings and their setting as a concern. The duty to investigate under section 66 the Planning (Listed Buildings and Conservation Areas) Act 1990, had to be triggered by at least someone either in the council or outside raising it as a potential issue. Since the setting of listed buildings had never been a main issue of the planning application, it was not necessary for the planning officer to identify each building to confirm that there would be no material impact upon it. Since there was no harm to any listed building which the claimants were required to take into account, the duty under section 66 to investigate whether there was any harm to listed buildings within the conservation area, did not arise: MJT Securities v Secretary of State for the Environment (1998) 75 P & CR 188 considered.
(3) The claimants had failed to fulfil their duty under section 72 of the 1990 Act to give considerable importance and weight to harm to the conservation area. The planning permission simply concluded that the impact on the historic merits of the conservation area and visual effect on amenity constituted less than substantial harm, which was outweighed by the public benefit of renewable energy generation through use of the river. However, it was not likely that the outcome would have been substantially different if the claimant had applied the correct test. If there was any harm to heritage assets, the response of conservation officers and the local authority was that it was, at most, minor harm. More importantly, there were weighty factors in favour of granting planning permission, including the opportunity of generating renewable energy from an existing water source. There was no prospect that the issue would have made any difference to the overall planning balance: Mordue v Secretary of State for Communities and Local Government [2015] EWCA Civ 1243; [2016] 1 WLR 2682; [2015] PLSCS 346 considered.
(4) Although the claimants had previously assumed that because the scheme would generate only 170kw of power, no screening opinion was necessary, it now conceded that such an opinion was necessary. However, there was no reason to conclude that if the matter was considered again, the claimants would issue a positive screening opinion concluding that the proposed development was an EIA development requiring the production of an environmental statement. It was not in the public interest for a decision to be quashed, and taken again, where there was no substantial prejudice to the claimant and no realistic prospect that the planning authority would decide that the proposal was in fact an EIA development. Accordingly, despite their failure to screen the development under the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, the court would not quash the claimants’ decision: Walton v Scottish Ministers [2012] UKSC 44 and R (on the application of Champion) v North Norfolk District Council [2015] UKSC 52; [2015] EGLR 59 considered.
Charles Streeten (instructed by Richard Buxton Solicitors, of Cambridge) appeared for the claimants; Jeremy Pike (instructed by South Oxfordshire District Council) appeared for the defendants.
Eileen O’Grady, barrister
Click here to read transcript: Goring-on–Thames Parish Council v South Oxfordshire District Council
