Town and country planning – Planning permission – Conditions – Claimant applying for judicial review of defendant local authority’s decision concerning conditions imposed on planning permission for wind turbine – Whether defendant wrongly discharging conditions relating to aviation safety and archaeological work – Whether planning permission expiring – Whether defendant failing to comply with publicity and consultation requirements for environmental matters – Application dismissed
The. In 2010, the first interested party developer applied to the defendant local authority for planning permission for a wind turbine at Shipmeadow, near Beccles, Suffolk near the Broads National Park. It was to have an 80 metre hub height and its height to the blade tip would be 125 metres. There was also to be a 60 metre high wind mast and ancillary infrastructure. There were many objectors to the application, including the claimant, who owned and occupied Crake Hall, which was the nearest dwelling to the proposed turbine. The defendant refused planning permission on visual, landscape and noise grounds.
The first interested party appealed. The planning inspector who heard the appeal granted planning permission subject to conditions. The claimant was unsuccessful in his challenge to the inspector’s decision: Howell v Secretary of State for Communities and Local Government [2014] EWHC 3627 (Admin); [2015] EWCA Civ 1189.
The claimant subsequently applied for judicial review of the defendant’s decision to approve the details under certain of the conditions imposed on the planning permission. He argued that the defendant had wrongly discharged the conditions relating to aviation safety and archaeological work since they had been breached; that as a consequence of the breach the planning permission had expired; and that the defendant had also failed to comply with the publicity and consultation requirements relating to environmental matters. He applied for an order quashing the decision that the planning permission was capable of implementation; a declaration that the planning permission had expired; and an order quashing the approval of details under the conditions. The second and third interested parties owned and operated Church Farm Airstrip, a small unlicensed airfield which was recognised by the Civil Aviation Authority. They supported the claim in respect of the aviation condition. The fourth and fifth interested parties owned the land where the turbine was to stand. The second to fifth interested parties did not appear and were not represented.
Held: The application was dismissed.
(1) The submission of the aviation details was late in breach of condition 3. However, the breach had to be approached with a dose of reality. The defendant was not required to approve the details; they needed to be submitted so that notice could be given of tall structures on the site. In fact, the height of the turbine and its location had been known for some time as a result of the inspector’s decision. When the details were submitted, the Ministry of Defence took the view that it was acceptable for development to commence notwithstanding the details were late. Further, the safety objective of notifying users separately from the charts could be achieved by providing the details three months prior to tall structures being erected. It was now ten months since work on the access road and there were as yet no tall structures on the site. In those circumstances, condition 3 was not a condition precedent going to the heart of the permission and the failure to comply with it did not make the entire development unlawful. In any event, it would be irrational and an abuse of power for the defendant to enforce against the developer for the late submission of the details which had been remedied by the time which had now passed. Accordingly, the defendant’s decision to discharge the condition did not attract any public law remedy. The development was lawfully commenced and the breach did not render it unlawful: R (Hammerton) v London Underground [2002] EWHC 2307 (Admin); [2003] JPL 984 and R (Hart Aggregates) v Hartlepool Borough Council [2005] 2 P&CR 31 followed.
(2) In reality, it was only when considering the conditions to be imposed on the planning permission that the inspector said that an archaeological condition was justified since the appeal site “may” be of archaeological interest. In the light of Lord Hodge’s judgment in Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74; [2015] PLSCS 362, “a phased arrangement as agreed and approved” by the defendant could encompass the written statement of investigation with its archaeological investigation accompanying the development. Against the background of the county archaeologist’s report, if there was a breach, the same analysis and conclusions flowed as with condition 3. Moreover, the claimant had not demonstrated prejudice, in particular that the archaeological work required by statement would not safeguard archaeological features.
(3) The defendant had concluded that applications for the approval of the details required by the planning conditions were subsequent applications under the Environmental (Impact Assessment) Regulations 2017. There was nothing in the application to discharge the conditions which suggested that the proposed development was materially different to the development for which planning permission had been granted. There was no reason to conclude that, when carried out, it would be likely to give rise to significant environmental effects which were different to those assessed in the original environmental statement. The inspector had considered that adequate when he granted planning permission. The court doubted that there had been a breach of the 2017 Regulations which were not straightforward as regards subsequent applications. Regulation 19(5) applied the publicity requirements of the Town and Country Planning (Development Management Procedure) (England) Order 2015 only where an applicant submitted an environmental statement in accordance with regulation 19(1). Since regulation 19(1) did not apply, and there was no environmental statement submitted, there were no further publicity requirements. Even if there had been a breach of the regulations, relief should be refused as a matter of discretion or under section 31(2A) of the Senior Courts Act 1981 because the claimant and others opposed to the development had not identified any substantial prejudice by breach of the publicity provisions and it was highly likely that the outcome would not have been substantially different if there had been compliance: Walton v Scottish Ministers [2012] UKSC 44; [2013] PTSR 51, R (Champion) v North Norfolk District Council [2015] UKSC 52; [2015] 1 WLR 3710, R (Goring Parish Council) v South Oxfordshire District Council [2016] EWHC 2898 (Admin); [2016] PLSCS 324; [2018] EWCA Civ 860; [2018] PLSCS 761; [2018] WLR 5161, R (Surringer) v Vale of Glamorgan Council [2016] EWHC 494 (Admin); [2016] Env LR 25 considered.
Richard Harwood QC (instructed by Harrison Grant) appeared for the claimant; Jack Parker (instructed by Waveney District Council) appeared for the defendant; Jeremy Pike (instructed by Direct Public Access) appeared for the first interested party. The other 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 Howell) v Waveney District Council
