Planning permission – Wind turbines – Delegation — Planning officer recommending grant of permission to second respondent — Area planning committee referring decision to full planning committee pursuant to first respondents’ scheme of delegation – Full committee granting permission — Whether respondents implementing unlawful scheme of delegation – Whether first respondents unlawfully failing to consult in respect of listed buildings – Appeal allowed
In March 2008, the second respondent applied to the first respondent council for planning permission to erect three wind turbines on a site in Norfolk. The application was accompanied by an environmental statement that dealt with the landscape and visual effects of the proposed development. The statement specified that all Grade II listed buildings in the area were deemed to be of medium to high value. It suggested that the development could adversely affect the buildings. The appellant, a company formed by local residents, objected to the application.
The planning officer’s report recommended that the application be approved. The first respondents’ north-west area planning committee voted 5:3 against the application but referred the matter to the full planning committee for determination, pursuant to the first respondents’ scheme of delegation. That provided that an area planning committee could not make a decision contrary to the recommendation of the development control services manager unless at least two-thirds of its membership agreed, failing which the matter had to be referred to the full planning committee. The full committee approved the application and a formal planning permission was issued subject to conditions, one of which required the interested party to measure noise levels in the event of a complaint.
The appellant applied for judicial review of the grant of permission on a number of grounds. The judge granted a declaration that the first respondents had failed to comply with regulation 21(1)(b) of the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999, which required them to inform the public of their decision. He further held that the majority voting requirement was authorised by section 101 of the Local Government Act 1972 and concluded that there was no basis for quashing the permission: [2009] EWHC 2856 (Admin); [2009] PLSCS 312.
The appellant appealed, contending that: (i) the judge had erred in concluding that the majority voting requirement was authorised by section 101; and (ii) the first respondents had failed to consult English Heritage as required by Circular 01/01 and regulation 5A of the Planning (Listed Buildings and Conservation Areas) Regulations 1990. Held: The appeal was allowed.
(1) Delegation arrangements made under section 101 might include conditions or limitations as to the extent of the delegation or the circumstances in which it might be exercised. However, the power to make such arrangements was subject to any express provision contained in the 1972 Act. Paragraph 44(1) of the Act, in applying para 39(1) of Schedule 12, expressly provided that all questions arising before a committee or subcommittee to which powers had been delegated in accordance with section 101 should be decided by a majority vote.
Those delegation arrangements could lawfully have included a proviso that the area planning committee had delegated authority to determine planning applications if its decision (by a majority) accorded with the recommendation of the head of planning services, and if not the matter would be referred to the planning committee. However, the arrangements could not lawfully override para 39(1) and provide, in effect, that a decision to grant or refuse planning permission contrary to the recommendations of the head of planning services could be taken by a two-thirds majority. If that requirement was unlawful, there would be no valid reference to the planning committee and it would not have power to determine the application.
Although the arrangements delegating power to determine planning applications to the area committee were lawful in principle, the terms of reference were unlawful in respect of the requirement of a two-thirds majority voting requirement. In view of the delay since the area committee’s decision, it would have to consider whether material change of circumstances had arisen in the meantime. Accordingly, the planning permission had to be quashed.
(2) The question for the purposes of Circular 01/01 and the 1990 Regulations was whether the development would affect the setting of the listed building, not whether it would affect it so seriously as to justify a refusal of planning permission. The extent of the effect and its significance in terms of the setting of the particular listed building were precisely the matters on which the expert views of English Heritage should be sought. On the face of their own documents, and assuming that for some unexplained reason they disagreed with the assessment in the environmental statement, the first respondents did conclude that the proposed development would affect the setting of a Grade I listed building.
In all the circumstances, the proper course would be to quash the permission. It was a finely balanced decision, as demonstrated by the voting figures in the area planning committee and in the planning committee. If the assessment in the environmental statement was accepted, the setting of a number of Grade I and Grade II listed buildings would be affected and there was a possibility that a English Heritage’s response to a consultation might have tipped the balance.
Richard Harwood (instructed by Richard Buxton Environment & Public Law, of Cambridge) appeared for the appellant; Philip Kolvin QC and Asitha Ranatunga (instructed by Sharpe Pritchard) appeared for the first respondents; Gordon Nardell QC (instructed by Bond Pearce) appeared for the second respondent.
Eileen O’Grady, barrister
