Town and country planning – Planning permission – Solar park – Claimant applying for judicial review of defendant local planning authority’s decision to grant planning permission for photovoltaic solar park – Whether planning permission being unclear on its face – Whether defendants failing to take into account material considerations – Whether article 3(1) of Town and Country Planning (General Permitted Development) Order 1995 producing gap in permitted development legislation in Wales – Application dismissed
The defendant local planning authority granted the interested party planning permission for a photovoltaic solar park on a site comprising 28.6 hectares of agricultural land at Hafod Y Dafal Farm, Abereeg, Abertillery. The claimant had an interest in land adjoining the site where he was coordinating a mineral project and applied for judicial review of the decision to grant planning permission.
The claimant alleged that the decision was unlawful on the grounds that: (i) the planning permission was unclear on its face because it recited, as part of the permitted development, the excavation of a cable trench to the south but then removed all reference to such excavation; (ii) failed to take into account material considerations, including the ecological report and the UK’s Solar Photovoltaic Strategy of April 2014; (iii) there was a gap in the permitted development legislation applicable to Wales because article 3(1) of the Town and Country Planning (General Permitted Development) Order 1995 (SI 1995/418) referred to legislation that no longer existed.
Held: The application was dismissed.
(1) There was nothing unusual or unlawful about the defendants’ way of proceeding or its grant of planning permission. The wording of the permission was clear, but it had to be read in conjunction with the conditions attached to it. The conditions expressly removed the southern cabling route from the main site to Abereeg. There was nothing ambiguous in the language used. It was clear and not confusing. Using conventional principles of construing a planning permission, a planning consent had been granted for the photovoltaic park, as applied for, but without the southern track which had been removed from the planning permission. Nor was there anything inconsistent about the treatment of the alternative track route: Richmond-upon-Thames Borough Council v Secretary of State for the Environment [1974] 1 All ER 193, Kent County Council v Secretary of State for the Environment [1976] 33 P & CR 70, Wheatcroft v Secretary of State for the Environment [1982] JPL 37, R v Ashford Borough Council, ex parte Shepway District Council [1998] PLSCS 156; [1999] P & CR 12 and Carter Commercial Development Ltd v Secretary of State for Transport, Local Government and the Regions [2002] EWCA Civ 1994; [2002] PLSCS 269 and Barnett v Secretary of State for Communities and Local Government [2009] EWCA Civ 476; [2009] PLSCS 110 applied.
(2) The defendants had taken into account all relevant material considerations. The ecological report had been considered by the defendants’ ecologist, who had no objection to the development. She had taken the view that it was preferable to have an updated report and that the matter could be dealt with by condition was because the risk to protected species and a nearby site of importance for nature conservation (SINC) as a consequence of the construction route was low. The defendants had taken the report into account and removed the area of potential uncertainty from the scope of the permission, even though it was low risk, namely, the southern access track. Further, the UK Solar PV Strategy published by the Department of Energy and Climate Change was not a planning policy document. While documents published by other government departments could be material considerations, that document was not. It added nothing new to the planning advice contained within Planning Policy Wales and the Welsh Government Practice Guidance and so was not something that could tip the balance in the determination of the planning permission: Bolton Metropolitan Council v Secretary of State for the Environment [1991] 61 P & CR 343 and R (on the application of Kides) v South Cambridgeshire District Council [2002] EWCA Civ 1370; [2002] 4 PLR 66 applied.
(3) There was no gap in the permitted development legislation applicable to Wales because article 3(1) of the 1995 Regulations referred to legislation which no longer existed and had not been amended to refer to the Conservation of Habitats and Species Regulations 2010 (SI 2010/490). If there was any doubt, member states were obliged to interpret domestic legislation in a manner gave effect to European legislation where that legislation had competence. It followed that article 3(1) of the 1995 Regulations had to be construed so as to refer to legislation currently in force in Wales, i.e., the 2010 Regulations, to give effect to the intention of Council Directive (EEC) 92/43 (the Habitats Directive) to preserve, protect and improve the quality of the environment, including the conservation of natural habitats and of wild fauna and flora.
Celina Colquhoun (instructed by Irwin Mitchell Solicitors) appeared for the claimant; Richard Kimblin and Nina Pindham (instructed by Blaenau Gwent County Borough Council) appeared for the defendants.
Eileen O’Grady, barrister
Click here to read transcript: Stevens (trading as KCS Asset Management) v Blaenau Gwent County Borough Council
