Planning permission – Wind farm – Development plan – First defendant’s inspector granting planning permission on appeal for second defendant’s wind farm development – Inspector giving weight to renewable energy policy in National Planning Policy Framework – Inspector concluding that harm caused contrary to development plan policies not outweighing wider economic and environmental benefits of development – Section 38(6) of Planning and Compulsory Purchase Act 2004 – Whether inspector failing to give required priority to development plan – Claim allowed
The first claimant council refused the second defendant’s application for planning permission to develop a wind farm comprising five wind turbines, with a maximum height of 125m, on a site in south Northamptonshire. The second defendant appealed to the first defendant and a public inquiry was held before a planning inspector, at which the second claimant, a member of a local action group, advanced her opposition to the development.
In her decision, the inspector gave considerable weight to the renewable energy policy in the National Planning Policy Framework. Although she found that the wind turbines would have a major impact on the landscape and would harm the setting of several designated heritage assets in the area, contrary to development plan policies, she found that the harm would not be “substantial” within the meaning of the Framework. She took the view that the harm to heritage assets and the impact on residential amenity were not sufficient to outweigh the wider economic and environmental benefits of the development; she granted planning permission accordingly.
The claimants brought proceedings, under section 288 of the Town and Country Planning Act 1990, to quash the grant of permission. They contended that, inter alia, the inspector had failed to attach any proper weight to conflicts with the development plan and had therefore failed to comply with the statutory duty, under section 38(6) of the Planning and Compulsory Purchase Act 2004, to make a determination in accordance with the development plan unless material considerations indicated otherwise. They submitted that the inspector had applied the wrong test by carrying out a straightforward balancing exercise, weighing harms against benefits, rather than according primacy to the development plan.
Held: The claim was allowed.
Section 38(6) of the 2004 Act gave effect to a “plan-led” system and created a statutory presumption in favour of the plan, with national planning policies being merely material considerations: City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447; [1997] 3 PLR 71, Sea & Land Power & Energy Ltd [2012] EWHC 1419 (Admin); [2012] PLSCS 121 and Cala Homes (South) Ltd v Secretary of State for Communities and Local Government [2011] EWHC 97 (Admin); [2011] 1 P&CR 22 applied. Many people saw their lives as being fundamentally affected by a decision to permit a large wind farm in their community and they were entitled to know whether the inspector, whose decision was so crucial to them, had followed the law. The inspector had erred by failing to accord to the development plan the priority required by law. Although, in her decision, she had identified the relevant development plan, applied the Framework and other national policy as material considerations and conscientiously weighed up the competing factors, at no point had she mentioned the priority due to the plan or expressed herself in terms that indicated that she was aware of the “plan-led” concept. She had evaluated the relevant planning policies against the broad principles of the Framework, in terms that gave the appearance of being Framework-led rather than plan-led. She had evaluated the competing considerations without any indication that the plan had priority. Consequently, she had failed to accord to the development plan the weight that section 38(6) required.
Asitha Ranatunga (instructed by the legal department of South Northamptonshire Council) appeared for the first claimants; Juan Lopez (instructed by direct access) appeared for the second claimant; Lisa Busch (instructed by the Treasury Solicitor) appeared for the first defendant; Timothy Corner QC (instructed by Eversheds LLP, of Leeds) appeared for the second defendant.
Sally Dobson, barrister
