In R (on the application of Gerber) v Wiltshire Council (see PP 2015/56), it is worth considering the specific factors that guided the judge’s decision that it was appropriate in the circumstances to quash the planning permission, rather than to exercise the discretion available to him. Having heard submissions and considered the guidance to be extracted from earlier authorities, the judge set out the matters which weighed – in his view – on either side of the balance.
Those supporting a decision to quash may be summarised as follows. (1) There was the issue of illegality bearing upon the national interest represented by the Grade II* listed building occupied by the claimant. The interests of a nationally important heritage asset had not been the subject of a properly informed assessment, aided by English Heritage. Nor had those issues been properly taken into account in the context of the duty arising under section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990. (2) The local planning authority, in adopting a negative screening opinion, had failed in a manner that was substantive rather than “aridly technical” to comply with the Town and Country Planning (Environmental Impact Assessment) Regulations 2011. (3) The developer had departed from what had been approved in terms of the planning permission in constructing the solar farm.
Those telling against the decision to quash may, in turn, be summarised as follows. (1) Substantial financial prejudice would be suffered by the developer, should the planning permission be quashed, given that the development was complete and in operation. (2) National policy support for the provision of renewable energy was also a relevant factor. (3) The question of prejudice to good administration, in terms of the need for certainty and reliability in decision making, also had to be taken into account.
Describing the balance as a fine one, the judge concluded that the factors weighing in favour of what one distinguished judge had called “the normal approach”, namely quashing the planning permission, outweighed those which opposed that approach. In particular, the proper interests of a nationally protected heritage asset, and the need to observe the requirements of EU derived law, were of particular importance in this context. The interests of good administration cut both ways. The decision under challenge was the subject of a number of serious flaws, and could not be said to be an example of good administration.
John Martin is a planning law consultant
