Town and country planning – Planning permission – Wind turbine – Appellant applying for judicial review of planning permission for wind turbine on farm – High Court dismissing application – Appellant appealing – Whether respondent local authority misinterpreting written ministerial statement – Appeal dismissed
In November 2011, the respondent 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.
On 18 June 2015, a written ministerial statement was made by the Secretary of State for Communities and Local Government which set out new considerations touching applications for planning permission for wind turbines. The last paragraph of the statement provided that, where a valid planning application for a wind energy development had already been submitted to a local planning authority and the development plan did not identify suitable sites, local planning authorities could find the proposal acceptable if, following consultation, they were satisfied it had addressed the planning impacts identified by affected local communities and therefore had their backing.
In October 2015, the respondents 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 respondents’ 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 para 87 and 88 of the National Planning Policy Framework (NPPF).
The appellant, a member of Woodborough and Calverton Against Turbines, applied for judicial review of the respondents’ decision on seven grounds. The application was dismissed: see [2016] EWHC 3095 (Admin); [2016] PLSCS 344.
The appellant appealed contending that the officer in his report had misinterpreted the final paragraph of the 2015 Statement and hence gave incorrect advice that the planning committee was entitled to conclude that the development complied with its guidance.
Held: The appeal was dismissed.
(1) The proper interpretation of planning policy, including the 2015 Statement, was a matter for the court. The statement did not provide a test for what was to count as the relevant local community in relation to any particular development. That would depend on the facts of the case and the planning judgment of the local planning authority. There was no suggestion in the present case that the respondents had reached an impermissible view of who constituted the local community in relation to the proposed development. The natural meaning of the last sentence of the statement was that a local planning authority could find the proposal acceptable if it had sufficiently addressed the planning impacts identified through consultation with the relevant local community to the extent that it could properly conclude, in the exercise of its planning judgment, that the balance of opinion in the local community was likely to be in favour of the proposal. The usual position when considering an application for planning permission was that a range of potential benefits had to be weighed against a range of incommensurable potential detriments. In the planning context the natural meaning of “addressed” was “sufficiently addressed”, i.e. sufficiently addressed by taking into account mitigating factors and countervailing benefits.
(2) A local community would comprise people who were likely to have a range of views in relation to a proposal along a spectrum, perhaps ranging from strong opposition on grounds that could never be assuaged to strong support, with many people somewhere in the middle with views that were capable of being affected by steps taken to mitigate or reduce the impact of a particular proposal on the local area. The planning authority therefore had to make a judgment, taking account of the representations received and assessing the weight and significance of any objections raised, as to where the balance of opinion was likely to lie within the local community as a whole, including its members who had not made representations. They might also make an assessment of the seriousness of the visual impact and whether sufficient steps of mitigation or local screening might have been taken to minimise the impact to a degree where it could be satisfied that the balance of view within the local community as a whole was to regard the proposed development as acceptable and worthy of their backing.
(3) Assessment of the balance of view within the local community as a whole, including those who did not make representations but who could be presumed to be reasonable members of the public, meant that the planning authority would inevitably have to consider whether planning impacts mentioned by some members of the local community had been sufficiently addressed by the proposal. The authority would then make a judgment about whether they could be satisfied that the balance of view within the local community as a whole was positive. The balance of view might well be positive, even though some planning impacts had not been wholly eliminated (but only sufficiently dealt with) and even though some members of the local community might never be persuaded to view the proposed development in a favourable light. Although the statement was intended to be additional policy guidance which might well affect planning decisions, it was plainly not intended to be completely at odds with national policy in relation to renewable energy nor with policies in local plans to promote the use of renewable energy. Accordingly, the respondents were lawfully entitled to make the assessment, in the exercise of their planning judgment on the evidence available to them, that the balance of view in the local community as a whole was favourable to the wind turbine proposal.
Richard Harwood QC (instructed by Harrison Grant Solicitors) appeared for the appellant; Richard Kimblin QC (instructed by Gedling Borough Council) appeared for the respondents; the interested parties did not appear and were not represented.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Holder) v Gedling Borough Council
