McDonald, R (on the application of) v Carmarthenshire County Council

MR JUSTICE HOLGATE: This is a renewed application for permission to apply for judicial review in relation to the defendant's decision dated 22 September 2015 to grant planning permission for the installation of a wind turbine at Nant Gerdinen, Carmarthenshire. The application site is located within an agricultural field belonging to a smallholding. The dwelling related to that smallholding lies about 370 metres to the south-west of the site. There are about four other dwellings located within 500 meters of the application site.

There are two proposed grounds of challenge. The first relates to an alleged failure on the part of the defendant to make available on its website information so that the claimant could know that the matter was going to go to the planning committee on 22 September 2015.

In brief, the way in which the council's procedure works is that site notices are posted for development proposals giving the address of a website which enables the public to follow the progress of a planning application. There is a requirement that the officer's report to the relevant planning committee should be displayed on the website at least 3 to 5 working days before the date of the planning committee.

In his witness statement, Mr McDonald points out that he objected to the proposal by way of five letters or emails between 25 July 2015 and 10 August 2015. He had intended to attend the planning committee meeting to speak against the planning application and to that end had been tracking the progress of the planning application on the website indicated on the site notice. He says that he last checked the website on 18 September 2015 and at that stage there was nothing to indicate that the date had been fixed for the committee meeting or that an officer had (Inaudible). He checked the website again on 21 September 2015. He clicked the progress tab and saw that a planning permission had already been granted. He says:

That is the sum total of the additional representations which according to his witness statement in support of the proposed judicial review the claimant says he would wish to have put before the members.

Given the claimant’s evidence of his disappointment when he discovered on 21 September that planning permission had been granted, an obvious question which arises in such a situation is in particular in the light of the claimant's evidence the point that the way in which the matter had been handled is what did he then do to raise any complaint specifically about the Council’s website? This is a point which has been raised by the council in their skeleton argument for today's hearing and there has been no real answer from the Claimant to it.

There were emails between the claimant and the relevant planning officer. On 24 September 2015, it is plain from those emails that the claimant believed that the council had unlawfully granted the planning permission because he had not had the opportunity to address the planning committee in person. He also said that he was proposing to appeal within 30 days. He gave no indication at that stage that there had been any problems with the council's website and he did not make the point that there had been a failure to put documentation onto the website, although that point must have been an obvious one for the Claimant to make if there had been any substance in it. The council officer pointed out that the appropriate procedure would be judicial review and in response to a question as to what was the nature of the complaint the claimant responded: "I am not entering into the specifics, the council will get this in the time scale I have identified", which gives the clear impression that he was holding back his complaint.

It is also surprising that when the pre-action protocol letter was sent on 20 October 2015 by solicitors who are very experienced in this area, the complaint made was simply about the claimant's inability to address the committee; nothing was said as to the alleged cause of this problem and in particular the alleged difficulties with the council's website.

The council have denied that there were problems with the website, relying upon a witness statement from a Mr Jones. That in turn has been vigorously refuted in a recent letter from the claimant's solicitors and it is suggested that if permission was granted to apply for judicial review there should be an order for cross-examination. No authority has been cited by the claimant to show that it would be appropriate to order cross-examination in circumnstances such as these.

The starting point for considering disputes as to the facts is to be found in authorities such as R v Camden London Borough Council Ex Parte Cran, in that where there is a dispute as to fact, the court ordinarily proceeds on the basis that the version of the facts stated by the defendant are accepted as being correct unless there is something intrinsically unreliable about what is said.

I do not find this particular point easy to resolve and my decision on permission does not depend on it. I understand the points being made by the claimant's solicitor in the letter of 15 February. As against that there are some serious questions raised by the council as to the failure of the claimant or his advisers to raise the IT problems before the claim for judicial review was launched. If cross-examination were to take place, in my view it would not be confined to the planning officer.

But what matters in a situation like this where the essential complaint is one of unfairness is whether the claimant raises any significant issue of prejudice. It was said long ago by Lord Denning in George v Secretary of State for the Environment (1979) 77 LGR 689,695 that there is no such thing as a technical breach of the rules of natural justice, unfairness connotes substantial prejudice. Likewise, recently the Court of Appeal in Hopkins v Secretary of State [2014] PTSR 1145 (paras. 49 and 62) has made the same point, in that someone who complains of unfairness must identify to the court at the outset the material prejudice which they claim to have suffered. In this context the only prejudice which is relied upon by the Claimant is that which I have identified already. However, one only has to go back to the officer's report to committee at page 537 of the bundle to see that the position in regard to the number of residential properties in proximity to the proposed site of the turbine is clearly and properly set out. When this was drawn to counsel's attention it was accepted on behalf of the claimant that this is not a case where it could be said, in accordance with Oxton Farms, Samuel Smiths Old Brewery (Tadcaster) v Selby District Council (18 April 1997), that the officer's report to committee was seriously misleading. That concession was plainly correct. Likewise, it cannot be said from the account given of what took place during the meeting, unsupported by any sort of transcript or note, that the members were seriously misled, given that the officer's report itself was accurate. So, in my judgment, this particular ground is unarguable.

The second matter relates to the way in which the council dealt with a European protected species, namely bats. The point arises in two ways. One, it is said that the council failed to act in accordance with Planning Policy Wales and more particularly TAN 5. Secondly, it is said that the council failed to comply with Article 12 of the Directive as transposed into regulation 53 of the Conservation of Habitats and Species Regulations 2010.

It was made plain in opening this application by Mrs Graham Paul that it is not being suggested on behalf of the claimant that the council failed to address regulation 53 in view of the decision of the Supreme Court in Morge v Hampshire County Council [2011] 1 WLR 268. Instead, two points are raised, namely it is said first of all that the permission was granted unlawfully in a situation where further bat surveys were required and in any event the members were misled because the advice they were given by officers suggested that a control would be imposed enabling the turbine to be switched off at night if further surveys were felt to be necessary. That is a construction point which relates to condition 15 of the planning permission which was granted.

In my judgment, there is absolutely nothing in this argument whatsoever. It is perfectly plain from the face of the condition that even without a benevolent construction, it gives the planning authority full power to impose a restriction on the operating hours of the turbine, including a requirement, if the council should think it appropriate that the turbine should be switched off at night. Therefore, the condition is entirely compatible with the advice given to the members in the officer's report.

The argument shifted slightly at that point to suggest that this would be a decision taken under the council's scheme of delegation by an officer as opposed to members of the committee. But there is nothing in that point either because that too is compatible with the way in which the matter was reported to the members at page 546 of the bundle.

The remaining point under this second ground concerns whether or not it was appropriate for permission to be granted albeit that further surveys were required to be undertaken. The officer's report refers to the consultation response of the statutory consultee: Natural Resources Wales, which occupies the same position for the purposes of the Habitats Regulations as Natural England in the Morge case. They are recorded as saying, "No objection subject to the authority being satisfied that trees adjacent to the site are removed to ensure sufficient distance from bat habitat". In the ecology section of the officer's report it was recorded that the council's planning ecologist had raised no concerns as regards habitats within the field as they were considered to be low in quality but then they went on to qualify this by saying:

It is therefore plain from the advice given - and this is the primary source upon which the claimant relies - that the council's ecologist was satisfied that the level of activity associated with bats in the vicinity of the site was low and was seeking additional information to confirm (or otherwise) that that remained the case for the rest of the year. Even so, the council's expert ecologist envisaged that no further requirement would need to be imposed whatever the outcome of the surveys other than a possible curtailment of the hours of operation. That is covered by condition 15.

In addition, the council point to the way in which this matter was dealt with by a planning inspector in an appeal decision in the previous year again by way of condition. The point is not on all fours with the issue raised by the council's officer but it does lend support to the view expressed in the officer's report that this was not a matter of significant concern in his professional opinion, given the requirements of the Habitats Regulations.

The advice in TAN 5 has to be read sensibly and in context it has to be applied to the circumstances of the case. For the reasons I have given, I do not consider that it is remotely arguable that the council erred in law in the respects suggested and for these reasons the application is refused.

I thank both counsel for their arguments.

MR EDWARDS: My Lord, may I just have confirmation that the defendant's costs of the acknowledgement of service remain.

MR JUSTICE HOLGATE: They have been ordered by Lang J already and there has been no application to set that aside. Is that right, Mrs Graham Paul?

MRS GRAHAM PAUL: Yes, my Lord. Lang J ordered the sum of £2,501 to be paid.

MR JUSTICE HOLGATE: And no submission are being made about that, or are they?

MRS GRAHAM PAUL: No, my Lord.

MR JUSTICE HOLGATE: Thank you very much, then I say nothing about it, there is no need to.