The owner of a Grade II listed hall, who claimed that the first he knew of a £10m solar farm within view of his property was when the panels were being installed, today met with a resounding defeat in his bid to have it dismantled.
Daniel Gerber, of Gifford Hall, Wiltshire, had last year won a ruling from the High Court quashing the planning permission on the basis that he had a legitimate expectation of being consulted over proposals for the solar farm. Mr Justice Dove extended time for Gerber’s judicial review challenge.
But today the Court of Appeal ruled that no such extension of time should have been given, and that the judge had been wrong not to exercise his discretion not to quash the permission, as a result of the “major financial detriment” solar farm tenants Norrington Solar Farm and Terraform Power would suffer if they had to remove it. They had given evidence that restoration of the farmland at Broughton Gifford would cost £1.5m.
The ruling will come as a boost to the UK renewables energy sector, after lawyers told the Court of Appeal in January that an order forcing demolition could damage investor confidence.
Lord Justice Sales said that while owners of adjoining properties had been individually notified of the solar farm proposal, failure to do so in the case of Gerber – whose Gifford Hall does not adjoin the site – did not constitute a breach of legitimate expectation on the part of Wiltshire Council.
He said that the council had given proper notice of the proposal, by posting notices at prominent places near the site, including at the end of a lane leading to Gifford Hall, as well as publicising the application in the local newspaper and providing details on its website.
And he said that, in those circumstances, it was not appropriate to extend time for bringing a legal challenge “simply because an objector did not notice what was happening”.
He added: “Mr Gerber had a fair opportunity to bring proceedings to challenge the planning permission in this case in a proper time which was an effective opportunity for the purposes of EU law.”
In any event, he said that even if extension of time were justified, the “appropriate result” would be to exercise judicial discretion in favour of not quashing the planning permission.
The major factors in that decision would be the long delay in bringing proceedings, the “major financial detriment” that Norrington and Terraform would suffer if the permission was quashed, and “the less substantial and less significant damage to Mr Gerber’s own interests (principally the harm to amenity he will have to bear as a result of being able to see the solar farm from certain parts of his property”.
Wiltshire Council, Norrington and Terraform took the case to the Court of Appeal in order to save the solar farm, for which permission was granted in 2013 and which was completed in 2014.
Richard Drabble QC, representing the solar farm tenants, argued that the planning system depends on certainty, and that uncertainty caused by permission being quashed long after implementation meant that companies involved in sustainable energy might lose confidence in the UK sector.
