Town and country planning – Planning permission – Wind turbine – Claimant applying for judicial review of planning permission for wind turbine on farm – Whether defendant local authority erring in finding very special circumstances justifying grant of approval – Application dismissed
In November 2011, the defendant local authority granted the interested party planning permission for a 50-metre high wind turbine, within 120 metres of a bridleway, at Woodborough Park, a farm close to the village of Woodborough in Nottinghamshire in the green belt. That decision was subsequently quashed: see [2014] EWCA Civ 599; [2014] PLSCS 147. In October 2015, the defendants approved installation of 197 kW solar panels on the roof of a barn on the site which were subsequently installed. The planning application for the turbine was then re-determined. The defendants’ planning officer prepared a report recommending that planning permission should be granted. The planning committee accepted the officer’s recommendations and granted planning permission concluding that there were very special circumstances which justified the approval of planning permission in accordance with paragraphs 87 and 88 of the National Planning Policy Framework (NPPF).
The claimant, a member of Woodborough and Calverton Against Turbines, applied for judicial review of the defendants’ decision. It contended that the planning committee had erred: (i) in its analysis of the contribution of renewable energy by way of carbon offsetting brought about by the turbine and failed to have regard to alternative means of generating renewables; (ii) in overlooking the relevance of the solar panels; (iii) in accepting that the turbine would make a significant financial contribution to the future profitability of the site and assist in securing the operation of the agricultural business in the longer term; (iv) in accepting that a measure of mitigation could also amount to a benefit; (v) in considering that any alternative had to generate the same amount of renewable energy as the turbine; (vi) in failing to have regard to a material consideration that local horse-riders were not using the bridleway because their horses had been disturbed by the turbine; and (vii) when considering that the concerns of the local population had been addressed.
Held: The application was dismissed.
(1) The claimant’s objection that the benefit was too weak to be relevant did not fairly summarise the reasoning of the officer. It was too simplistic to say that the generation of renewable energy did not amount to a very special circumstance because it could be achieved outside the green belt. On the contrary, the officer acknowledged that the contribution to climate change objectives was significant and could be relevant to an assessment of “very special circumstances” but needed to be viewed in conjunction with other benefits, if it was to pass the threshold of “very special circumstances”. There was no error of logic or evaluation in the officer’s reasoning: Redhill Aerodrome Ltd v Secretary of State for Communities and Local Government [2014] EWCA Civ 1386; [2015] EGLR 33 applied.
(2) It was hard to see why the existence of the solar panels approved under prior approval should be of any great significance because the defendants had no control over the installation and it could be installed irrespective of whether the turbine was approved or not. In any event the committee had been aware of the existence of that capacity and could be presumed to have taken it into consideration. Furthermore, on the logic of the officer’s report it was difficult to see how or why the existence of that limited capacity would have made any difference to the outcome: Derbyshire Dales District Council v Secretary of State for Communities and Local Government [2009] EWHC 1729 (Admin) applied.
(3) The officer and the committee had arrived at a proper and rational conclusion as to the financial security of the farm, based upon the practical realities of a closely held farm business rather than abstract and theoretical considerations which related to corporate structure. Whilst the officer’s report had stated that ownership was not a planning issue, viewed in context, it was evident that he had been saying, on the facts of the present case, that ownership was irrelevant. The committee had known of the closely held nature of the farm and the turbine and formed its own view that the formal ownership arrangements in the relevant documents did not provide a complete answer. Practical reality and substance had taken precedence over form.
(4) As a matter of simple fact and logic, a measure of mitigation might be a measure which did not entirely mitigate the harm to which it was addressed but might also, because of its intrinsic characteristics, amount to a discrete and direct benefit. On the facts of the present case, the planting would mask or shield the turbine only to a moderate degree. There would be a significant residual visual impact of the turbine over and above the planting. However, given that the planting was extensive and designed to enhance the landscape character and ecology of the wider area, it was entitled to be treated as a discrete benefit.
(5) The officer and the committee had had before them competing contentions as to alternative technologies and had been aware of the scale of the revenue likely to be generated by the turbine and of the range of alternative technologies and the pros and cons of each. The committee had been aware of the uses to which the revenue from the turbine could be put in the context of the interested party’s business. That had been a matter of planning judgment for the officer and the committee, and their conclusions had not been irrational. There had been ample evidence before the decision makers to enable them to formulate a judgment.
(6) It was clear that both the officer and the committee had been fully appraised of all issues relating to both safety and amenity, and had considered those matters when arriving at the conclusion that development should be granted. The committee had been aware that there were complaints and videos evidencing horses being spooked. Ultimately, the committee had formed its own judgment. The complaint was nothing more than an objection to the manner in which the committee had exercised its judgment.
(7) The committee had been properly advised on the written ministerial statement and it had formed its own view, having weighed the pros and cons of the proposal. It had fully taken into account local objections and concern, and had approved the proposal, as it had been entitled to do: R (on the application of West Berkshire District Council) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441; [2016] PLSCS 137 applied.
Richard Harwood QC (instructed by Harrison Grant) appeared for the claimant; Richard Kimblin QC (instructed by Gedling Borough Council) appeared for the defendants; the interested parties did not appear and were not represented.
Eileen O’Grady, barrister
Click here to read a transcript of Holder v Gedling Borough Council.
