Planning permission – Wind turbine – Material consideration – Defendant local authority granting planning permission for wind turbine – Claimant objecting and applying for judicial review of defendants’ decision – Whether planning officer properly advising on material considerations – Whether defendants imposing valid planning obligations – Whether defendants making erroneous decision that no environmental impact assessment being required – Application dismissed
The defendant local authority granted planning permission to the interested party for a wind turbine on their farm situated in open countryside within the green belt. The defendants adopted an environmental impact assessment (EIA) a screening opinion in respect of the proposal. Permission was granted subject to the interested party giving three unilateral undertakings in respect of noise levels.
The claimant challenged the defendants’ decision contending that: (i) the defendants had erroneously accepted the report of a planning officer that various matters should not be treated as material planning issues; (ii) the planning obligations were invalid and the authority’s acceptance of the interested party’s unilateral undertakings, rather than imposing planning conditions, was unlawful; and (iii) the screening opinion disclosed an error of law, in that the defendants had looked no further than the thresholds stated in a circular, indicating the types of case in which an EIA was more likely to be required, when they should have analysed the need for an EIA.
Held: The application was dismissed.
(1) In the absence of a lexicon of relevant considerations to which attention had to be paid, the decision maker had to decide for himself what he would take into account. In doing so he had to be guided by the policy and objects of the governing statute, but his decision as to what he would or would not consider was itself only to be reviewed on conventional Wednesbury grounds. A consideration was material if it was relevant to the question whether the application should be granted or refused. It had to be a factor which had some weight in the decision-making process, although it might not be determinative. The test was objective in that the choice of material considerations had to be rational, and the considerations chosen had to be rationally related to land use issues. The weight to be attached to any material consideration was a matter for the decision maker, subject to Wednesbury unreasonableness and any consideration which related to the use and development of land was capable of being a planning consideration: R (on the application of Copeland) v Tower Hamlets London Borough Council [2010] EWHC 1845 (Admin); [2011] JPL 40 applied.
In the present case, there was nothing in the case law that precluded an officer from giving guidance and advice to the defendants as to what in substance were considerations material to the planning application in relation to the specific proposal before the defendants. There are considerable advantages if the officer gave such guidance and advice because, if it was soundly based, the decision maker was more likely to focus and to concentrate on what was really important and determinative, rather than be distracted by matters which could, hypothetically, be relevant but which, in the particular case, had no real bearing upon the final decision. The process was then likely to be more efficient and the final decision to be more justifiable.
(2) The purpose of the planning obligations in the present case had been to ensure that the proposed development of the land did not give rise to unacceptable levels of noise and imposed a relevant restriction on how the land should be used, without causing excessive noise, or created a duty to use the land in a particular way. The inclusion of particulars to make the obligation more precise and enforceable, as to the tolerable levels of noise, how and where the noise levels should be ascertained, and as to the procedure to be followed to secure compliance, did not convert the restriction or obligation into one that no longer related to the use of land. The present restriction or obligation was not a personal one, having no, or insufficient, connection to the use of land. The interested party had agreed to enter into the relevant undertaking which was in precise terms and was readily enforceable. The appropriateness of one form of enforcement as against another in a case like the present was not a proper matter for judicial review: Westminster City Council v Secretary of State for Communities and Local Government [2013] EWHC 690 (Admin); [2013] PLSCS 91 distinguished.
(3) A screening opinion was not intended to involve a detailed assessment of factors relevant to the grant of planning permission; that came later and would ordinarily include an assessment of environmental factors, among others. It involved only a decision, almost inevitably on the basis of less than complete information, whether an EIA needed to be undertaken at all. The court should not impose too high a burden on planning authorities in relation to what was no more than a procedure intended to identify the relatively small number of cases in which the development was likely to have significant effects on the environment.
Standing alone, the natural reading of the screening opinion was that the threshold referred to was determinative of the analysis. As a matter of common sense, the threshold was in this case of very considerable relevance. The proposal was for a single turbine of modest height, producing one fifteenth of the guidance threshold. It was not surprising, therefore, that the author of the opinion had given such prominence to the threshold, even if she had carried out the requisite analysis. Furthermore, the screening opinion, read as a whole, showed that she had directed her mind to those matters that bore on the need for an EIA and had not had regard to the fact that the relevant information would be provided in any event in the application as a reason for concluding that an EIA was not needed: R (on the application of Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157; [2011] PLSCS 58 applied.
Richard Harwood QC (instructed by Richard Buxton) appeared for the claimant; Richard Kimblin and Hashi Mohamed (instructed by Gedling Borough Council) appeared for the defendants.
Eileen O’Grady, barrister
R (on the application of Holder) v Gedling Borough Council
Planning permission – Wind turbine – Material consideration – Defendant local authority granting planning permission for wind turbine – Claimant objecting and applying for judicial review of defendants’ decision – Whether planning officer properly advising on material considerations – Whether defendants imposing valid planning obligations – Whether defendants making erroneous decision that no environmental impact assessment being required – Application dismissedThe defendant local authority granted planning permission to the interested party for a wind turbine on their farm situated in open countryside within the green belt. The defendants adopted an environmental impact assessment (EIA) a screening opinion in respect of the proposal. Permission was granted subject to the interested party giving three unilateral undertakings in respect of noise levels. The claimant challenged the defendants’ decision contending that: (i) the defendants had erroneously accepted the report of a planning officer that various matters should not be treated as material planning issues; (ii) the planning obligations were invalid and the authority’s acceptance of the interested party’s unilateral undertakings, rather than imposing planning conditions, was unlawful; and (iii) the screening opinion disclosed an error of law, in that the defendants had looked no further than the thresholds stated in a circular, indicating the types of case in which an EIA was more likely to be required, when they should have analysed the need for an EIA.Held: The application was dismissed. (1) In the absence of a lexicon of relevant considerations to which attention had to be paid, the decision maker had to decide for himself what he would take into account. In doing so he had to be guided by the policy and objects of the governing statute, but his decision as to what he would or would not consider was itself only to be reviewed on conventional Wednesbury grounds. A consideration was material if it was relevant to the question whether the application should be granted or refused. It had to be a factor which had some weight in the decision-making process, although it might not be determinative. The test was objective in that the choice of material considerations had to be rational, and the considerations chosen had to be rationally related to land use issues. The weight to be attached to any material consideration was a matter for the decision maker, subject to Wednesbury unreasonableness and any consideration which related to the use and development of land was capable of being a planning consideration: R (on the application of Copeland) v Tower Hamlets London Borough Council [2010] EWHC 1845 (Admin); [2011] JPL 40 applied.In the present case, there was nothing in the case law that precluded an officer from giving guidance and advice to the defendants as to what in substance were considerations material to the planning application in relation to the specific proposal before the defendants. There are considerable advantages if the officer gave such guidance and advice because, if it was soundly based, the decision maker was more likely to focus and to concentrate on what was really important and determinative, rather than be distracted by matters which could, hypothetically, be relevant but which, in the particular case, had no real bearing upon the final decision. The process was then likely to be more efficient and the final decision to be more justifiable. (2) The purpose of the planning obligations in the present case had been to ensure that the proposed development of the land did not give rise to unacceptable levels of noise and imposed a relevant restriction on how the land should be used, without causing excessive noise, or created a duty to use the land in a particular way. The inclusion of particulars to make the obligation more precise and enforceable, as to the tolerable levels of noise, how and where the noise levels should be ascertained, and as to the procedure to be followed to secure compliance, did not convert the restriction or obligation into one that no longer related to the use of land. The present restriction or obligation was not a personal one, having no, or insufficient, connection to the use of land. The interested party had agreed to enter into the relevant undertaking which was in precise terms and was readily enforceable. The appropriateness of one form of enforcement as against another in a case like the present was not a proper matter for judicial review: Westminster City Council v Secretary of State for Communities and Local Government [2013] EWHC 690 (Admin); [2013] PLSCS 91 distinguished. (3) A screening opinion was not intended to involve a detailed assessment of factors relevant to the grant of planning permission; that came later and would ordinarily include an assessment of environmental factors, among others. It involved only a decision, almost inevitably on the basis of less than complete information, whether an EIA needed to be undertaken at all. The court should not impose too high a burden on planning authorities in relation to what was no more than a procedure intended to identify the relatively small number of cases in which the development was likely to have significant effects on the environment. Standing alone, the natural reading of the screening opinion was that the threshold referred to was determinative of the analysis. As a matter of common sense, the threshold was in this case of very considerable relevance. The proposal was for a single turbine of modest height, producing one fifteenth of the guidance threshold. It was not surprising, therefore, that the author of the opinion had given such prominence to the threshold, even if she had carried out the requisite analysis. Furthermore, the screening opinion, read as a whole, showed that she had directed her mind to those matters that bore on the need for an EIA and had not had regard to the fact that the relevant information would be provided in any event in the application as a reason for concluding that an EIA was not needed: R (on the application of Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157; [2011] PLSCS 58 applied.Richard Harwood QC (instructed by Richard Buxton) appeared for the claimant; Richard Kimblin and Hashi Mohamed (instructed by Gedling Borough Council) appeared for the defendants.Eileen O’Grady, barrister
