Holder, R (on the application of) v Gedling Borough Council & Ors

Christopher Holder, the Claimant, challenges the decision of Gedling Borough Council, the Defendant, to grant planning permission to Mr and Mrs Charles-Jones, the Interested Party, for a wind turbine. The Claimant objected to the application and is a member of Woodborough and Calverton Against Turbines (“WACAT”).

Planning permission 2011/0523 was granted by the Council on 3 November 2011 for the erection of a wind turbine (with a hub height of 50 metres and 66 metres to tip) at Woodborough Park, Foxwood Lane, Woodborough.

Permission to apply for judicial review was granted by the Court of Appeal (Lewison LJ) following refusals in the High Court. The application to the Court of Appeal was on three grounds: material considerations; errors in the decision notice and resolution; and Environmental Impact Assessment.

Woodborough Park is a farm near the village of Woodborough in Nottinghamshire. The land is open countryside and is within the Nottingham Green Belt.

Planning permission for the erection of two 11kW wind turbines was granted on 19 August 2010 (reference 2010/0244). These turbines were to have 18 metre high masts with 13 metre diameter rotors. On 6 June 2011 the Council granted planning permission for the erection of two ground mounted photovoltaic panel arrays (totalling 9.9kW) as appropriate development in the Green Belt.

On 22 July 2010 Segen applied for an Environmental Impact Assessment screening opinion in respect of the current proposal. The request enclosed ‘Pre-application information’ which identified the type of turbine and the proposed location. Under ‘possible environmental impacts’ brief comments were made on bats, birds, shadow flicker, noise and the historic environment. It was said that substantial justification would be provided for the proposal in the Green Belt and early consultation would take place “to inform the Environmental Assessment which will accompany the forthcoming planning application”.

The Council adopted a screening opinion on 30 September 2010 in these terms:

“The proposed development involves the installation of one turbine with a hub height of 50 metres and a maximum ground to tip height of 66 metres, in this case therefore the proposal is considered to be “Schedule 2 Development” of the 1999 Regulations. In these circumstances paragraph 33 of circular 02/99 (Environmental Impact Assessment) requires Local Planning Authorities to consider the impacts of the effects of the development in terms of the “selection criteria” set out in Schedule 3 of the Regulations. The selection criteria require consideration of the characteristics of the development, the location of the development and the characteristics of the potential impact.

Paragraph A15 of circular 02/99 states that an EIA is more likely to be required for commercial developments of five or more turbines or more than 5mw of new generating capacity. I therefore consider that as the proposed development is for one turbine with a generating capacity of 330kw an EIA would not be required in this instance.

Whilst, therefore, the Borough Council consider that an EIA would not be required to be submitted, should a formal planning application be submitted, consideration would need to be given to the appropriateness of the development in this location and whether or not there are special circumstances to justify the development. In addition to this consideration would need to be given to the potential impact of the development on the character of the area, the impact on the visual amenity of the area, the potential noise impact of the proposal on the area, impact on the area as a result of possible flicker from the turbine and the impact on wildlife.

I can advise you, in respect to the above, that the site is located within the Green Belt and the landscape in this area is classified as Dumbles Rolling Farmland a sub type of Nottinghamshire farmlands and within the Nottingham Landscape Character Assessment as Woodborough Sloping Farmland. There are a number of residential properties surrounding the site, Woodborough Park Farm, Wood Farm and the residential properties on Georges Lane. I would also point out that a bridle path runs along the ridge line in this area linking Georges Lane with Foxwood Lane. The deciduous woodland, Fox Wood, to the east of the site is a site of important nature conservation and a Scheduled Ancient Monument.”

The planning application was submitted on 11 May 2011. The proposal was intended to replace the planning permission for the two smaller turbines. It was accompanied by various documents including an ‘Environmental Appraisal’ which was not described as an Environmental Statement under the EIA Regulations.

Local residents formed “Woodborough and Calverton Against Turbines” to object to the application. They instructed a planning consultant and she sent a detailed letter of objection which referred to various matters including the ability to achieve economic benefits by the twin turbine and solar panel planning permissions. The letter proposed draft reasons for refusal on Green Belt, landscape and visual impact, heritage and amenity of recreational user grounds. It also identified other negative impacts including to noctule bats. WACAT also submitted reports from landscape consultants and from noise consultants which were critical of the proposals.

The planning application was reported to the Council’s Planning Committee on 2 November 2011. Under “relevant planning history” the report referred to the planning permission for two turbines and the EIA screening decision.

The report summarised various consultation responses including:

“Urban Design & Conservation Consultant - Objects to the proposed development due to the lack of planning policy on the siting of wind turbines and considers the proposal to be an intrusion into the rural setting around the Conservation Areas. Concerned that should this turbine proposal be approved, it would be difficult to refuse others in similar locations and result in a cumulative impact.

Nottinghamshire County Council (Communities) – No planning objection subject to the applicant addressing the impact to bats and cumulative impact, as well as the Borough Council being satisfied that very special circumstances have been demonstrated.

Rights of Way Officer – Objects to the proposal and refers to the British Horse Society advice of a 200m buffer zone between wind turbines and bridle paths.”

1125 objections had been received from the public and these were briefly summarised, some under the heading of “Material Planning Issues”. The report then listed various representations under “Non-material Planning Issues” including:

“Non-material Planning Issues

•

The granting of permission for this application would set a precedent for further turbine development nearby.

•

The proposed turbine would not generate a significant amount of energy and would be inefficient.

•

The proposal would only benefit the applicant financially.

•

The turbine should be sited elsewhere outside of the Green Belt on already degraded landscapes.

...

•

There are other alternative methods of producing renewable energy instead of the proposed turbine.”

The planning officers accepted that the proposal was inappropriate development in the Green Belt. It would not have an “unduly material impact on the openness of character of the site and wider locality” but would have a “major visual impact” on bridleway users. The County Council was reported as recommending that there be an ecological management plan to “partially mitigate against the impact of the introduction of an industrial feature into a rural landscape”. On noise, the report said that the application site was in a rural “low noise environment” and that “with the imposition of a suitably worded condition, including absolute noise limits, the site and neighbouring properties would be safeguarded from any material noise impact”.

In respect of visual and noise impacts on the footpath/bridleway the report said:

“Impact on Footpath/Bridle path.

As discussed previously, I consider the proposal would result in a visual impact on the recreational users of the Spindle Lane footpath due to the proximity of the proposed turbine to the footpath.

...

Whilst accepting that the proposed turbine would be highly visible to the recreational users of the footpath, I consider that with the attachment of conditions relating to an ecology and landscape plan which would facilitate the introduction of further hedgerow planting to partly mitigate against the visual impact as well as conditions stipulating maximum noise limits, I am of the opinion that the proposal would not result in such a great impact as to impede or deter recreational users of the footpath.”

In respect of very special circumstances in the Green Belt the report referred to general guidance in Planning Policy Statement 22 on the materiality of the wider environmental and economic benefits of renewable energy proposals and the advice in paragraph 13 of the PPS that “very special circumstances may include the wider environmental benefits associated with increased production of energy from renewable sources”.

The officer advice continued:

“In accordance with the above guidance, therefore, the case for justifying that very special circumstances do exist to overcome other policy objections does not have to cover the issues of whether the proposal is needed or the likely amount of energy to be generated, but should be based around the wider economic and environmental benefits that renewable energy generation brings.

In this context, the erection of the proposal would allow the end-user of the energy created, either on the site itself or through it being exported to the National Grid, to use less fossil fuel generated energy, which would result in lower carbon dioxide emissions as well as energy being generated at lower cost. Equally, not granting permission could perpetuate long term reliance on fossil fuels for energy generation at significant financial, in terms of needing to import fossil fuel and exploit increasingly expensive sources, and environmental, in terms of carbon emissions, costs.

In relation to environmental benefits, therefore, it is considered that the production of renewable energy and the associated reduction in carbon emissions and improvement to air quality constitutes the very special circumstances necessary to justify inappropriate development within the Green Belt. This approach has been applied by Planning Inspectors in appeal decisions. It is also considered that as the proposal would assist the farm to diversify and be strengthened financially, which in turn would ensure the farm is viable to continue to manage the area, this element of the proposal also demonstrates a wider economic benefit and is considered a very special circumstance. The social benefits put forward by the applicant in regard to the increased educational opportunities are not considered to be a very special circumstance in this instance, however the wording of PPS22 (paragraph 1iv) gives greater weight to environmental and economic benefits and not social benefits.”

The report concluded:

“... I am satisfied that very special circumstances, both economic and environmental, apply to this proposal and recommend that Members grant planning permission.”

The recommendation set out proposed conditions including condition 6:

“Prior to the commencement of development, a landscape and ecological management plan, which should include further hedgerow and tree planting at the site as well as a timescale for implementing the proposed planting, shall be submitted to and approved by the Local Planning Authority.

[reason] In order to minimise the potential visual impact to the recreational users of the Spindle Lane footpath and to aid the implementation of some of the key actions for the Woodborough Sloping Farm Land policy zone.”

Proposed conditions on noise included:

“8.

The rating level of noise from the wind turbine (including the application of any tonal penalty) when calculated in accordance with the method described in the guidance document ‘ETSU-R-97: The Assessment and Rating of Noise from Wind Farms’ shall not exceed the values set out in table 1”

The Table identified NSR locations and established a procedure which, following a substantiated complaint, was intended to ensure that corrective action was taken if noise levels were exceeded. The condition also referred to further Conditions A and B, which were not in fact mentioned elsewhere.

The Committee resolved to approve the application by 10 votes to 7.

On 3 November the planning permission was issued. The decision notice included the recommended conditions except that in condition 8 the table of noise levels and the details of the NSR locations below the table were omitted. Conditions 9 to 11 referred to conditions A, B and D but no conditions with those references were set out in the permission.

A Judicial Review pre-action protocol letter was sent on behalf of WACAT on 15 December 2011, setting out the first six grounds of the judicial review application. The Council sent a preliminary reply on 21 December which acknowledged that the table in condition 8 had not been included in the permission and the references to conditions A, B and D were incorrect. The Council stated that these errors did not invalidate the decision and that the grant would be amended to accord with the decision of the Committee. Enclosed with the letter was a new version of the planning permission. This included the table which was proposed for condition 8 and provided condition numbers instead of the references to A, B and D in conditions 9 and 10. However it did not include the identification of the noise measurement locations which should have been below the table.

The replacement permission retained the date of 3 November 2011 and did not refer to it being a replacement or that a previous consent had been issued.

A draft planning obligation was produced with the Council’s acknowledgment of service.

In attempts to correct errors, the Interested Parties have entered into three different unilateral undertakings:

Planning Policy Guidance Note 2 (“PPG2”) sets out Green Belt Policy:

“3.1

The general policies controlling development in the countryside apply with equal force in Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such development should not be approved, except in very special circumstances. …

3.2

Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development.”

Paragraph 3.15 of PPG2 dealt with visual amenity:

“The visual amenities of the Green Belt should not be injured by proposals for development within or conspicuous from the Green Belt which, although they would not prejudice the purposes of including land in Green Belts, might be visually detrimental by reason of their siting, materials or design.”

The proposed wind turbine was inappropriate development and the paragraph 3.2 test had to be satisfied. The approach to paragraph 3.2 was set out by Sullivan J, as he then was, in Doncaster Metropolitan Borough Council v Secretary of State for the Environment, Transport and the Regions [2002] J.P.L. 1509 at para 70:

“Given that inappropriate development is by definition harmful, the proper approach was whether the harm by reason of inappropriateness and the further harm, albeit limited, caused to the openness and purpose of the Green Belt was clearly outweighed by the benefit to the appellant's family and particularly to the children so as to amount to very special circumstances justifying an exception to Green Belt policy.” (original emphases)

As to renewable energy, paragraph 20 of the Supplement to Planning Policy Statement 1 (Planning and Climate Change) states that, in particular, planning authorities should:

“not require applicants for energy development to demonstrate either the overall need for renewable energy and its distribution, nor question the energy justification for why a proposal for such development must be sited in a particular location.” (Referring to paragraph 5.3.67 of Meeting the Energy Challenge (2007) cm 7124)

Paragraph 13 of Planning Policy Statement 22 states that renewable energy development is capable of being accommodated within the urban and rural areas. PPS22 – Key Principles states that applications should not be refused solely on the ground that the level of output is small. Applicants do not need to satisfy a “sequential” test and to show that the application site was superior to alternatives (see paragraph 16 of PPS22).

Mr Richard Harwood QC, on behalf of the Claimant, first submitted that the Council had erred in law in its approach to material considerations. He pointed to section 70(2) of the Town and Country Planning Act which provided that in determining a planning application “the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations” (cf section 38(6) of The Planning and Compulsory Purchase Act 2004).

The caselaw on material considerations was summarised by Cranston J in R(Copeland) v London Borough of TowerHamlets [2010] EWHC 1845 (Admin), [2011] JPL 40 at para 20 to 23:

“20.

The principles for addressing material considerations were set out by Laws LJ in R. (on the application of J (A Child)) v North Warwickshire BC [2001] EWCA Civ 315; The Times, March 30, 2001. There Laws LJ said that the operative statute may provide a lexicon of relevant considerations to which attention had to be paid but if the statute provided no such lexicon--or at least no exhaustive lexicon--the decision maker had to decide for himself what he would take into account. In doing so he had obviously to be guided by the policy and objects of the governing statute, but his decision as to what he would consider and what he would not consider was itself only to be reviewed on conventional Wednesbury grounds ([20]).

21.

In R. (on the application of Kides) v South Cambridgeshire DC [2002] EWCA Civ 1370; [2003] JPL 431; [2003] P & CR 19, the Court of Appeal addressed what was a material consideration in the planning context. Jonathan Parker LJ said:

“121.

In my judgment a consideration is ‘material’, in this context, if it is relevant to the question whether the application should be granted or refused; that is to say if it is a factor which, when placed in the decision-maker's scales, would tip the balance to some extent, one way or the other. In other words, it must be a factor which has some weight in the decision-making process, although plainly it may not be determinative. The test must, of course, be an objective one in the sense that the choice of material considerations must be a rational one, and the considerations chosen must be rationally related to land use issues.”

It is trite law that the weight to be attached to any material consideration is a matter for the decision maker, subject to Wednesbury unreasonableness: Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759; R. (on the application of Sainsbury's Supermarkets Ltd) v Wolverhampton City Council [2010] UKSC 20 at [70].

22.

Promoting social objectives may be a material consideration in the planning context. Planning controls in order to promote social objectives are considerations which can relate to physical land use. Whether a social objective is relevant in a particular case turns on the circumstances. As long as the promotion of the social goal is lawfully within the planning sphere it matters not that it falls elsewhere as well.

23.

In Stringer v Ministry of Housing and Local Government [1970] WLR 1281; [1971] 1 All ER 65, Cooke J said:

“It may be conceded at once that the material considerations to which the Minister is entitled and bound to have regard in deciding the appeal must be considerations of a planning nature. I find it impossible, however, to accept the view that such considerations are limited to matters relating to amenity. So far as I am aware, there is no authority for such a proposition and it seems to me wrong in principle. In principle, it seems to me that any consideration which relates to the use and development of land is capable of being a planning consideration.””

In Copeland officers had advised that the proximity of a proposed fast-food takeaway to a school that was trying to promote healthy eating was “not a material planning consideration that can have weight in determining this application against council policy” (paragraph 7). The Court held this was advising committee members that the matters could not be material planning considerations and so could not be taken into account (paragraph 30) and it could not be concluded that the committee had not followed the advice (paragraph 32). It is notable that in Copeland it was common ground that the Council was entitled, but not bound, to have regard to the particular consideration (paragraph 26), and Cranston J found as a fact that the Council was advised that it was not so entitled (paragraph 30).

Mr Harwood QC submitted that the officer in the present case told the Council that various matters should not be treated as “material planning issues”. The Council was being told not to consider those matters. That, he contended, was an error of law of the same kind as invalidated the approach in Copeland. I shall consider each of the matters in turn.

Precedent

As a general proposition permission for development may set a precedent for further development of the same character: Collis Radio Limited v Secretary of State for the Environment (1975) 29 P & CR 390. Where development is proposed in the Green Belt, grant of planning permission based on very special circumstances may well, depending on the precise circumstances, create a precedent for future decisions: see Doncaster MBC v Secretary of State at paragraphs 39, 52-62 and 68.

Mr Harwood QC submitted that in this case any future application in the Council’s part of the Green Belt would have to be considered against the background of the approval of the present development. The very special circumstances relied upon were the general matters of renewable energy and economic benefit for the farm’s viability. The only particular feature of the development was that it had a significant visual impact, but that feature would enhance the precedent effect in favour of future applications for developments of a similar kind. It was difficult, he said, “to see how the Council could refuse any other single wind turbine proposal on a farm on Green Belt grounds” (written skeleton, paragraph 49(a)).

However, in my view, firstly, there is nothing in the caselaw, upon which Mr Harwood QC relied, that precludes an officer from giving guidance and advice to the Council as to what in substance are the considerations material to the planning application in relation to the specific proposal before the Council. On the contrary, there are considerable advantages if the officer does give such guidance and advice because, if it is soundly based, the decision maker is more likely to focus and to concentrate on what is really important and determinative, rather than be distracted by matters which could, hypothetically, be relevant but which, in the particular case, have no real bearing upon the final decision. The process is then likely to be more efficient and the final decision to be more justifiable. In Copeland this legitimate process went awry simply because the officer told the Council that it was not entitled to have regard to a particular consideration when, in the circumstances of the specific application before the Council, the Council was plainly entitled to have regard to that particular consideration, and was otherwise indeed very likely to have given weight, even significant weight, to that particular consideration.

The evidence of Mr Gareth Elliot, a Planning Officer of the Council, explains what occurred by contrast in the present case. Mr Elliot explains that the grant of permission for this development would have no “precedent” value to a future applicant for permission. The proposed turbine had a unique visual appearance within the landscape. It was necessary to assess this turbine as regards the openness of the Green Belt. Another proposal for a wind turbine or turbines would have a unique impact of its own and would have to be assessed on its own merits. Mr Elliot put the point in this way:

“Assessment of proposals for built development in the Green Belt requires careful and highly site specific assessment of landscape and visual effects, particularly in respect of openness, topography, screening and dimensions and orientation of built development. All are site specific, so a grant of permission in one place creates no precedent in respect of another.” (My emphasis)

Mr Elliot also explained that cumulative impact could come into consideration. At the time of granting the present planning permission there were no turbines and cumulative impact was not a real issue. However, any future application would have to be assessed in the light of cumulative impact, a proposition not criticised by the Claimant.

In these circumstances, it appears to me that, in contrast to Copeland, the advice or guidance given in relation to the specific application under consideration in respect of “precedent” was soundly based – indeed plainly correct – and, for the reasons already given, no objection can properly be made to the officer giving to the Council, to assist its decision-making in relation to that specific application, such advice or guidance.

Alternative Sites and Alternative Means of Generating Renewable Energy

As to alternative sites generally, Carnwath J, as he then was, explained the position in Derbyshire Dales District Council v Secretary of State for Communities and Local Government [2010] 1 P & CR 19:

“…It is one thing to say that consideration of a possible alternative site is a potentially relevant issue, so that a decision-maker does not err in law if he has regard to it. It is quite another to say that it is necessarily relevant, so that he errs in law if he fails to have regard to it.

18.

For the former category the underlying principles are obvious. It is trite and long-established law that the range of potentially relevant planning issues is very wide (Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281; [1971] 1 All ER 65; (1971) 22 P & CR 255 QBD); and that, absent irrationality or illegality, the weight to be given to such issues in any case is a matter for the decision-maker (Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759; [1995] 2 All ER 636; (1995) 70 P & CR 184 HL at 780). On the other hand, to hold that a decision-maker has erred in law by failing to have regard to alternative sites, it is necessary to find some legal principle which compelled him (not merely empowered) him to do so.

19.

Of the many cases referred to in argument before me, the only one in which an error of the latter kind was found by the courts was Secretary of State for the Environment v Edwards (PG) (1995) 69 P & CR 607; [1994] 1 PLR 62 CA (Civ Div). The facts illustrate the special circumstances which are necessary to support such an argument.”

In certain circumstances alternative sites may well be a material consideration in an application for development in the Green Belt: see, for example, Trusthouse Forte Hotels Ltd v Secretary of State for the Environment (1986) 53 P & CR 293 at 303; R(Siraj) v Kirklees Metropolitan Borough Council [2010] EWCA Civ 1286, [2011] JPL 571, at paragraphs 25-28. Mr Harwood QC submitted that alternative sites outside the Green Belt and alternative means of generating renewable energy may have been relevant in the present case: if a need can be met by siting facilities outside the Green Belt or by having less obtrusive installations, that may be relevant as to whether there are very special circumstances. Ability to increase the farm income by other means might also be material. However, the officer advised or guided the Council that alternative sites was not a material planning consideration.

However, I again refer to the view that I have already stated, namely, that the officer was entitled, and could reasonably be expected, to give guidance and advice to the council as to what in substance were the considerations material to the planning application in relation to the specific proposal before the Council. As regards “alternative sites” and “alternative means of generating renewable energy” the matter was plain.

Planning Policy Statement 1 Supplement (Planning and Climate Change) (see paragraph 30 above) made clear that in the present context there was no requirement to demonstrate need. Before that statement of policy, applications for renewable energy developments had failed on consideration of targets, efficiency and output. Similarly, PPS22 – Key Principles (see paragraph 30 above) emphasised that applications should not be refused on the ground only that the level of output was small. Paragraph 16 of PPS 22 stated in terms that, as most renewable energy resources can only be developed where the resource exists and where economically feasible, local planning authorities should not use a sequential approach in the consideration of renewable energy projects. In short “alternative sites” or “alternative means of generating energy” were simply irrelevant as far as the present application was concerned.

Mr Elliot put the matter in the following way:

“9.

Given the above policy guidance, I was of the opinion that the application should be considered on its own individual merits with the site specific merits being assessed rather than assessing why the application site was more appropriate than any other potential sites.

Moreover, because the applicant wished to use the renewable energy in his farming enterprise it was therefore not an option for the applicant to consider a wide variety of sites in the district over which he had no control and at locations where the energy could not be used.

10.

Similarly, as the supplement to PPS1 states that the applicant does not need to justify the need for renewable energy or why such a development should be sited in a particular location, I am of the opinion that alternative ways of producing renewable energy at the site is not a material issue in this instance. Instead, the proposal should be assessed on the individual merits of the proposed wind turbine scheme. There is no policy basis for the planning authority to refuse one form of development for another form of development unless there is a clear policy basis to do so. The local planning authority would lose at appeal and would be liable for costs.”

In my judgment, that evaluation was soundly based, indeed plainly correct, and, for the reasons already given, no objection can properly be made to the officer giving the Council, to assist its decision-making in relation to this specific application, the advice or guidance that was given as to the relevance of the matters now relied on.

Efficiency

Mr Harwood QC submitted that the amount of energy which would be generated by the turbine may be material to the grant of permission. The amount of electricity generated by a particular turbine depends upon the wind speeds that it experiences. The power output for the turbine in this case is negligible at wind speeds (at hub height) below 5m/s and it reaches maximum output at 15m/s. Different locations will have different levels of wind. The benefits achieved at a particular location may be less for the size of turbine, and this may be relevant to the desirability of the particular location.

However, PPS22 paragraph 1(IV) – Key Principles states:

“The wider environmental and economic benefits of all proposals for renewable energy projects, whatever their scale, are material considerations that should be given significant weight in determining whether proposals should be granted planning permission.” (My emphasis)

Paragraph (VI) states in terms:

“Small scale projects can provide a limited but valuable contribution to overall outputs of renewable energy and to meeting energy needs both locally and nationally. Planning authorities should not therefore reject planning applications simply because the level of output is small.” (My emphasis)

As already noted (see paragraph 30 above), there is no “sequential” test for renewable energy developments.

Given the relevant planning policies in this context, the officer was entitled, and could reasonably have been expected, to advise the Council that it should not take into account, in deciding this specific application for planning permission, the likely levels of output of energy from this turbine, and, in particular, should not consider whether a higher level of output might be achieved at some other (unspecified) location. Indeed, in the light of the unambiguous terms of the relevant policies, such advice, in my view, was highly prudent. If the development was otherwise acceptable, in terms of the effect on, for example, landscape and openness, and offered the positive environmental and economic benefits associated with renewable energy projects, the Council would plainly have been exposed to the virtual certainty of successful challenge on appeal if it had refused permission on the ground that the likely output of energy from this turbine would be small. Such an approach would have been simply inconsistent with the clear terms of the relevant policies.

Financial Benefit to the Applicant

It appears that this aspect is based on an alleged inconsistency in the officer’s advice. On the one hand the officer advised the Council not to take into account any immediate financial gain to the applicant, and, on the other, advised that the proposed development would allow the farm to diversify with an additional income stream and to achieve lower energy costs, considerations that were said to weigh in favour of granting permission. I see no such inconsistency. The potential for immediate gain relates to the distribution of income or wealth. Redistribution of income or wealth as such is not material to the grant or refusal of planning applications. The potential for diversification and reduced costs of inputs by contrast relates to the more efficient allocation of resources and to the wider economic benefits of the development. That feature is relevant to the grant of planning permission (see, for example, PPS7 as regards diversification and its contribution to “very special circumstances”), a proposition that I did not understand Mr Harwood to be contesting.

For these reasons, I reject the first ground of challenge.

The Defendant has accepted that once a planning permission has been issued the local planning authority has no power to issue a further planning permission unless and until the original planning permission is either revoked or quashed by the Court: R v Yeovil Borough Council ex p Trustees of Elim Pentecostal Church (1972) 23 P & CR 39 at 44; Heron Corporation Ltd and another v Manchester City Council (1977) 33 P & CR 268 at 271-272. In this case, therefore, the Defendant accepts that, having sent out the first decision notice, it could not send out a further amended decision notice. Mr Richard Kimblin, on behalf of the Council, appeared also to accept that the further amended decision notice should be quashed. Mr Kimblin has subsequently confirmed that the notice should be quashed. However, Mr Kimblin submitted that the whole matter was now resolved through the original planning consent and the planning obligations undertaken by the Interested Party. The focus of the challenge, therefore, concentrated on (i) the validity of the obligations and (ii) the lawfulness of accepting undertakings as distinct from imposing planning conditions.

As a general matter, local planning authorities are empowered to impose conditions upon the grant of planning permission: sections 70, 72, Town and Country Planning Act 1990. Once imposed a condition may only be changed on appeal, by an application for a new planning permission (under sections 73 or 73A) or as a non-material amendment under section 96A. The scope of conditions can be broad, extending to the applicant’s activities off-site and may require or prohibit their activities on the highway or extend to third party land if it can reasonably be expected that this would be allowed: R(Friends of Hethel Ltd) v South Norfolk Council [2009] EWHC 2856 (Admin), [2010] JPL 594 at para 79, 84. Planning conditions may be enforced by breach of condition notices, enforcement notices, stop notices or temporary stop notices or injunctions. Breach of these notices is a criminal offence.

Planning obligations may be entered into by persons interested in land to control or require activities on that land or make payments to the local planning authority. Section 106(1) Town and Country Planning Act 1990 provides:

“(1)

Any person interested in land in the area of a local planning authority may, by agreement or otherwise, enter into an obligation (referred to in this section and sections 106A and 106B as “a planning obligation”) enforceable to the extent mentioned in subsection 3 –

(a)

Restricting the development or use of the land in any specified way,

(b)

Requiring specified operations or activities to be carried out in, on, under or over the land;

(c)

Requiring the land to be used in any specified way; or

(d)

Requiring a sum or sums to be paid to the authority … on a specified date or dates periodically.”

To be a planning obligation a deed must comply with these requirements. In Westminster City Council v Secretary of State for Communities and Local Government [2013] EWHC 690 (Admin) a purported planning obligation required the owner of a dwelling to (i) not to apply to the Council for a parking permit, (ii) say in advertising or marketing material that there was no entitlement to a permit for the dwelling, (iii) include in any lease, tenancy or licence a clause that there be no application for a permit and (iv) send a copy of any lease to the Council [para 7]. This did not meet the requirements of any of sub-paragraphs (1)(a) to (d) and so was not a planning obligation but a purely personal undertaking which did not run with the land [para 22].

The Secretary of State’s policy is that authorities should use conditions rather than planning obligations where possible, see Circular 11/95 para 12, 13:

“12.

It may be possible to overcome a planning objection to a development proposal equally well by imposing a condition on the planning permission or by entering into a planning obligation under section 106 of the Act. The Secretaries of State consider that in such cases the local planning authority should impose a condition rather than seek to deal with the matter by means of a planning obligation. This is because the imposition of restrictions by means of a planning obligation deprives the developer of the opportunity of seeking to have the restrictions varied or removed by an application or appeal under Part III of the Act if they are or become inappropriate or too onerous. It should be noted, however, that section 106A of the Act allows a developer to apply to the local planning authority to discharge or modify a planning obligation after the expiry of five years after the obligation is entered into--for further advice see DOE Circular 28/92 (WO 66/92).

13.

Where conditions are imposed on a planning permission they should not be duplicated by a planning obligation.”

The Obligations

Mr Harwood QC asserted that the relevant undertaking (see annex to this judgment) contained elements “which are outside section 106, namely measurement at the off-site locations and the provision of information to the Council”.

I had some difficulty in understanding this submission. Section 106 is framed in relatively broad terms, referring, inter alia to obligations that restrict the use of land or require the land to be used in any specified way. In this case the purpose of the obligation was to ensure that the proposed development of the land did not give rise to unacceptable levels of noise. In other words, the obligation imposed a relevant restriction on how the land should be used (if seen negatively), namely, without causing excessive noise, or created a duty to use the land in a particular way, namely, only with acceptable noise levels (if seen positively). If the obligation had been phrased in such a limited manner, I do not apprehend that Mr Harwood QC would have objected. However, to make the obligation more precise and enforceable, particulars were included as to the tolerable levels of noise, how and where the noise levels should be ascertained, and as to the procedure to be followed to secure compliance. I simply do not see how inclusion of such particulars converts the restriction or obligation in question into one that no longer relates to the use of land. The present restriction or obligation is not a personal one, having no, or insufficient, connection to the use of land, as was found in Westminster City Council.

Enforcement

Mr Harwood QC submitted that a planning condition is readily enforceable by the service of a breach of condition notice (section 187A, Town and Country Planning Act 1990) and failure to comply with such a notice can be prosecuted in the Magistrates’ Court. The noise conditions in the planning obligations are only enforceable by injunction in the County Court or High Court. Injunctive proceedings are a far graver, rarer and more expensive step for the Council to take. The prospect of injunctive proceedings if one or two properties are subject to noise above the limits is much reduced compared to the Council serving a breach of condition notice in a similar case.

In response to my request the parties provided me with the relevant part of the Encyclopedia of Planning Law and Practice Volume 2, Part VII – Enforcement, Section 187A [of the Town and Country Planning Act 1990 – Enforcement of Conditions].

The General Note – Introduction to that part states, inter alia:

“The simple design of the procedures [for enforcing conditions] disguises a potential maze of complexity, and it is likely that local planning authorities will wish to resort to these powers only in the clearest cases of breach. The complexity arises in four key areas: … ”

The putative maze of complexity suggested by these introductory observations did not appear to be a promising start for Mr Harwood’s submission about ease of enforcement. The General Note also devotes a section to “Public law challenge as defence to prosecution”, highlighting the potential procedural uncertainty as to whether judicial review or collateral challenge in the criminal courts should be pursued in particular circumstances.

However, even putting those matters aside, I see no merit whatsoever in this ground. The Interested Party has agreed to enter into the relevant undertaking. The undertaking is in precise terms and is readily enforceable. It is clear that the Council would take appropriate action if the terms of the undertaking had to be enforced. The appropriateness of one form of enforcement as against another in a case like the present is simply not a proper matter for judicial review. I cannot, therefore, improve upon the rejection of this ground by the learned Recorder of Birmingham:

“8.

….Iam bound to say I found this discussion and argument sterile. There is no doubt that either can be enforced. There is no suggestion that the local planning authority would not enforce an undertaking that has been entered into if there were plain breaches of it. The difficulty or otherwise of enforcement is not a proper subject for litigation in or decision by this court. The question is whether the undoubted slip that was made, however it is to be described, is such as to require this court to interfere and to quash the permission.

9.

I have come to the conclusion that there is no proper case for quashing that decision for the reasons advanced under the first category of the claim as argued by Mr. Harwood. It is not arguable that it is appropriate to quash the permission for those reasons. I decline to give permission on those grounds”

For this ground it is convenient to set out the relevant part of Circular 02/99 in respect of EIA development:

“44.

For each category of Schedule 2 development, Annex A to this Circular lists criteria and/or thresholds which indicate the types of case in which, in the Secretary of State's view, EIA is more likely to be required. Annex A also gives an indication of the types of impact that are most likely to be significant for particular types of development. It should not be presumed that developments falling below these thresholds could never give rise to significant effects, especially where the development is in an environmentally sensitive location. Equally, developments which exceed the thresholds will not in every case require assessment. The fundamental test to be applied in each case is whether that particular type of development and its specific impacts are likely, in that particular location, to result in significant effects on the environment. It follows that the thresholds should only be used in conjunction with the general guidance, and particularly that relating to environmentally sensitive locations (paragraphs 36-40).” (Original emphasis)

The Defendant accepts that the Claimant was entitled to know the reasons for a negative screening opinion. R(Mellor) v Secretary of State for Communities and Local Government [2010] Env LR 2 makes clear that projects in Annex II must only be subject to an assessment if they are likely to have significant effects. Competent authorities must carry out a specific evaluation. There is no requirement for reasons for a negative screening opinion. An interested party may nevertheless ask for reasons, and if necessary seek to compel the competent authority to provide them. Provision of reasons to an interested party need not necessarily be in the form of a statement of reasons but may also be by provision of information or relevant documents.

The domestic courts have clarified the nature of the duty to give reasons. In R(Bateman) v South Cambridgeshire DC [2011] EWCA Civ 157 Lord Justice Moore-Bick LJ stated:

“20 …. I think it important to bear in mind the nature of what is involved in giving a screening opinion. It is not intended to involve a detailed assessment of factors relevant to the grant of planning permission; that comes later and will ordinarily include an assessment of environmental factors, among others. Nor does it involve a full assessment of any identifiable environmental effects. It involves only a decision, almost inevitably on the basis of less than complete information, whether an EIA needs to be undertaken at all. I think it important, therefore, that the court should not impose too high a burden on planning authorities in relation to what is no more than a procedure intended to identify the relatively small number of cases in which the development is likely to have significant effects on the environment, hence the term “screening opinion”.”

Mr Harwood QC submitted, first, that the screening opinion disclosed on its face an error of law. Paragraph 44 of Circular 02/99 (see paragraph 67 above) indicated that the relevant thresholds should be taken into account only against the factors mentioned in the general guidance, that is, the thresholds were an aid to, not a substitute for, analysis of the need for an EIA. However, the second paragraph of the screening opinion (see paragraph 7 above) indicates that Ms Alison Jackson, Senior Planning Officer, and author of the opinion on behalf of the Council, looked no further than the threshold, which she was using as a substitute for proper analysis. The use of the linking term “therefore” in the second sentence of the second paragraph shows that that was the case.

In the first paragraph of the screening opinion, the author recognised that the selection criteria required “consideration for the characteristics of the development, the location of the development and the characteristics of the potential impact”. However, the opinion did not go on to consider explicitly those features in the context of an assessment of the need for an EIA, but appeared, as I have noted, to rely exclusively on the thresholds in Circular 02/99. Standing alone, I would have to conclude that the natural reading of the document is that the threshold referred to was determinative of the analysis.

This matter was raised in the Claimant’s pre-action protocol letter. In response Ms Lyn Sugden, a solicitor writing on behalf of the Council stated that Ms Jackson had considered:

“i)

the proposal, being for just one wind turbine, was of local importance only; and

ii)

whilst it was accepted that it was in the green belt, the site together with the immediate surrounding area were not environmentally sensitive or vulnerable locations in any other respect; and

iii)

the proposal was not unusually complex and potentially hazardous;

iv)

the consultations and considerations which would have to be undertaken should a full application be submitted would fully address the impact of the proposed turbine; this again is evident from her letter which fully details the considerations and consultations necessary.”

Mr Harwood QC understandably attacked this response, submitting that it bore the hallmarks of being an impermissible redesign of the screening opinion, drawn with the benefit of retrospective legal input, as distinct from a response fairly and accurately representing the actual analysis carried out by the responsible officer at the time. Furthermore, Mr Harwood submitted that point (iv) above disclosed a further legal error: the fact that further information would be provided in any event with the application for planning permission is not a good and lawful reason for deciding that an EIA is unnecessary: see R(Lebus v South Cambridgeshire District Council [2003] JPL 466 paragraph 10-13, 39, by Sullivan J, as he then was.

However, for these proceedings, and aware of the Claimant’s extended case in respect of the screening opinion, Ms Jackson prepared a witness statement. First, she stated that she had personally written the text, quoted above, in response to the pre-action protocol letter. That text had not been “generated” by a third party, or by a lawyer. Mr Harwood very fairly accepted that affirmation. As regards the matter arising under point (iv), Ms Jackson continued in her written statement:

“6.

I have been shown a copy of the Claimant’s Grounds in this application for permission to apply for judicial review. I note that it is suggested that I considered that an EIA was not required because the Council would receive the necessary information in any event, if a full application was made. This suggestion is quite wrong. What I actually said, and the basis of my decision was, that the consultations and considerations which would have to be undertaken on a full application would produce consultation responses which would themselves be useful information about the effects on the environment. As a matter of fact I consider this to be accurate. I do not see any conflict at all with this statement of fact and the process which I went through in order to decide whether an EIA should be required.

7.

I wish to make it quite clear that I did not decide that an EIA was not required because reports on issues such as landscape impact and noise would be produced in any event.

8.

However, having considered the particular characteristics of the development and the particular location in which it was proposed to be located, it was clear to me that, notwithstanding that an EIA was not required, the applicant would need to provide certain information to support the application. It is standard, and indeed good, practice to provide information to would-be applicants in advance of the making of an application so that they understand what information the Council will require in order to determine their application. It is for that reason that I used the same letter to explain to the applicant’s agent the information which the Council would seek.”

The reference in paragraph 6 to the “basis” of the decision is potentially confusing, because it might suggest that the fact that information would be provided in the application did underpin the screening opinion. However, on a fair reading of the relevant paragraphs as a whole it is apparent that that was precisely the scenario which Ms Jackson was at pains to refute, and the use of “basis” in this context was simply infelicitous.

I was initially somewhat troubled by the foregoing sequence of events. However, having considered the contents of her witness statement, I am prepared to accept, first, that Ms Jackson, on behalf of the Council, did carry out the requisite analysis, as explained in the pre-action protocol response, and, secondly, did not rely exclusively on the threshold in Circular 02/99. As a matter of common sense, the threshold was in this case of very considerable relevance. The proposal was for a single turbine of modest height producing 330KW, one fifteenth of the guidance threshold which is for five turbines or producing more than 5MW. It is not surprising, therefore, that Ms Jackson gave such prominence to the threshold, even if, as I accept, she had carried out the requisite analysis. Furthermore, the screening opinion, read as a whole, shows that she had directed her mind to those matters that bore on the need for an EIA. I also accept, on the basis of her witness statement, that she did not have regard to the fact that the relevant information would be provided in any event in the application as the reason, or a reason, for concluding that an EIA was not needed.

While I of course accept that the EIA analysis should be undertaken in a lawful manner, as I find was here the case, I do note that the Claimant did not allege that the assessment in the screening opinion was unjustified. For example, as explained earlier, WACAT instructed planning consultants to make representations on their behalf. The consultants submitted lengthy written representations to the Council, dated 7 July 2011, eight months after the screening opinion, addressing the environmental and planning policy issues which arose from the applications. The representations did not suggest that an EIA was required, and that the Council’s assessment that no EIA was needed was wrong. Nor do I believe that Mr Harwood QC was submitting that in this case the final assessment in the screening opinion, that no EIA was needed, was itself legally flawed. Such a submission, as is well known, would be very difficult to sustain: see Anne Marie Loader v Secretary of State for Communities and Local Government [2011] EWHC (Admin); [2012] JPL 154, where, at paragraphs 38-39, Lloyd-Jones J, as he then was, summarises the correct legal approach to challenges to the conclusions of screening opinions.

For these reasons, I reject the third ground.

The claim for judicial review succeeds only to the extent that the second decision notice should be quashed (see paragraph 54 above). The other grounds of challenge are rejected.