Town and country planning – Planning permission – Wind turbine – Defendant local planning authority granting interested party planning permission to erect wind turbine – Claimant seeking judicial review — Whether defendants failing to make available noise report – Whether defendants applying correct noise limit – Application granted
The interested party applied for planning permission to erect a wind turbine on its farm near Brackenside in Berwick-upon-Tweed, Northumberland. To address concerns about noise, it engaged a company to prepare an environmental noise assessment which concluded that there would be no significant cumulative noise impact. A report prepared by the defendant local planning authority’s officer recommended approval of the application and that report was uploaded to the defendants’ publicly accessible website. The defendants’ planning committee subsequently met and resolved to grant for the reasons outlined in the officer’s report, with delegated authority to agree conditions to be attached to the planning permission following a public consultation.
The claimant, a neighbouring landowner, applied for judicial review of that decision on the basis of, amongst other things: (i) the defendants’ failure to make the report available to the public at the requisite time, contrary to section 100D of the Local Government Act 1972 and its own policy; and (ii) the defendants’ misinterpretation of the notion of “financial involvement” in planning guidance so that they had applied the higher noise limits, allowed for a turbine where properties affected had a financial involvement in it, to all the interested party’s properties, when some had not been occupied by persons with a financial involvement in the turbine.
Held: The application was granted.
(1)There was no doubt that there had been a number of breaches of the public’s right to know under the 1972 Act. Contrary to section 100D(1)(b) and (3), the report had not been open to inspection at the offices of the council by members of the public in that arrangements had not been in place for it to be produced. Further, the fact that the report had not been on the authority’s publicly accessible website had been in breach of the undertaking in its policy. Accordingly, publication had not been effected in a timely manner and the defendants had not established that the decision would inevitably have been the same had the report been available, as it should have been. The court took a dim view of any public authority backdating a document in a manner which could give a false impression to the public. Publication of a Statement of Community Involvement was a statutory obligation. In this case, the defendants’ statement was a promise, going beyond the statutory obligations in the 1972 Act, giving rise to a legitimate expectation that there would be publication in accordance with its terms. It was a continuing promise, for otherwise the public’s right to know what was being proposed regarding a planning application would be frustrated: R (on the application of Majed) v Camden London Borough Council [2009] EWCA Civ 1029 and R (on the application of Kelly) v Hounslow London Borough Council [2010] EWHC 1256 (Admin) considered.
(2) Information had to be published by the public authority in good time for members of the public to be able to digest it and make intelligent representations: The very purpose of a legal obligation conferring a right to know was to put members of the public in a position where they could make sensible contributions to democratic decision-making. In practice whether the publication of the information was timely would turn on factors such as its character (easily digested/technical), the audience (sophisticated/ ordinary members of the public) and its bearing on the decision (tangential/ central). In the present case, publication had not been effected in a timely manner. The defendants’ subsequent consultation could not remedy those earlier failings. Consultation on the noise condition had been no substitute for the opportunity to make representations as to whether planning permission should be granted in the first place and it had come too late: R v North and East Devon Health Authority, ex parte Coughlan [2001] Q.B. 213 and R (on the application of Moseley) (in substitution of Stirling Deceased) v Haringey London Borough Council [2014] UKSC 56 considered.
(3) The company preparing the report and, through it, the defendants had been wrong to assume that, because all the properties had been owned by the interested party, that had been the end of the matter and there had been a financial involvement. That assumption had failed to take into account that the guidance referred to the occupiers having the financial involvement and the interested party’s tenants had not had a financial involvement by virtue of the interested party’s own financial involvement.
Richard Harwood QC (instructed by Richard Buxton Solicitors) appeared for the claimant; Sasha White QC (instructed by Northumberland County Council) appeared for the defendants; The interested party appeared in person.
Eileen O’Grady, barrister
