Neutral Citation Number: 2013 EWCA Civ 1719

Neutral Citation Number: [2013] EWCA Civ 1719

Case No: A2/2013/1835

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT

QUEEN'S BENCH DIVISION

(MR JUSTICE PARKER)

Royal Courts of Justice

Strand

London, WC2A 2LL

Wednesday, 4 December 2013

B E F O R E:

LORD JUSTICE SULLIVAN

THE QUEEN ON THE APPLICATION OF

CHRISTOPHER JAMES HOLDER

Claimant/Appellant

GEDLING BOROUGH COUNCIL

Defendant/First Respondent

MR AND MRS JOHN CHARLESJONES

Interested Party/Second Respondent

(DAR Transcript of

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MR RICHARD HARWOOD QC (instructed by Richard Buxton) appeared on behalf of the Claimant

J U D G M E N T

(As approved by the Court)

1.LORD JUSTICE SULLIVAN: This is a renewed application for permission to appeal against the order dated 12 June 2013 of Parker J dismissing the applicant's claim for judicial review of a planning permission granted by the respondent on 3 November 2011 for the erection of a wind turbine with a hub height of 50 metres and 66 metres height to tip at Woodborough Park, Foxwood Lane, Woodborough.

2.This case provides a textbook illustration of the need for the planning fasttrack system that has now been instituted in the Administrative Court.

3.The planning permission granted on 3 November 2011 was defective because it did not fully incorporate certain conditions which had been recommended by the planning officer and which the planning committee had wished to see imposed. So a replacement planning permission, bearing the same date and attempting to rectify the original error, was issued on or about 21 December 2011.

4.Judicial review proceedings were commenced promptly. A preaction protocol letter had been sent on behalf of WACAT (Woodborough and Calverton Against Turbines), an organisation of which the claimant is a member. That letter was sent on 15 December.

5.However, the application for permission to apply for judicial review was not determined on the papers until 25 May 2012 when it was refused. The renewed application was not considered until 4 September 2012, when it was again refused. On 17 December 2012, Lewison LJ granted permission to apply for judicial review and remitted the matter to the Administrative Court, where it was eventually heard by Parker J on 14 May 2013. He gave judgment on 12 June 2013. The judgment is reported at [2013] EWHC 1611 (Admin).

6.The judge quashed the second replacement planning permission which the respondent had had no power to issue, but he rejected the challenges to the first planning permission. The applicant's application for permission to appeal against the judge's rejection of their challenges to the first planning permission was refused on the papers by Beatson LJ on 20 August 2013. I am considering the applicant's renewed application for permission to appeal on 4 December, just over two years after the planning permission under challenge was granted.

7.The interested party's written submissions and a witness statement say that the turbine is actually under construction and is expected to be in operation by January 2014. It is possible, therefore, that any relief that the court might be minded to grant will be rendered nugatory as a result of the delay in obtaining permission to apply for judicial review. It is surprising that it took so long to obtain permission to apply for judicial review, because on the face of it this was a case where it was at least arguable that whenever something could have gone wrong at the various stages of the procedure, it had gone wrong.

8.Thus, on the face of it, the respondent's screening opinion in which it decided that there was no need for an environmental impact assessment was simply based on the threshold for wind turbines set out in circular 02/99. The site is in the Green Belt and the planning officer's report stated that various matters, including precedent, were not material considerations. The first planning permission failed to incorporate conditions which the committee thought were necessary, and, having determined that application, the respondent then proceeded to grant a second planning permission when it had no power to do so.

9.Against that unhappy procedural background, I consider this renewed application for permission to appeal. Taking the three grounds in reverse order, the respondent explained how its screening decision was reached in a written statement of Ms Jackson, the officer who had actually made the decision. In paragraph 75 of his judgment, the judge said that he was troubled by the sequence of events that he had set out, but he accepted what was said in Ms Jackson's witness statement.

10.I do not see any real prospect of the applicant being able to persuade the Court of Appeal that the judge was not entitled to adopt that course. I quite understand that on one reading of the witness statement, Ms Jackson was saying that effectively the process of consultation on the planning application could substitute for the EIA process because it would flush out the necessary environmental information. However, the judge concluded (and in my judgment he was entitled to do so) that Ms Jackson had properly concluded that the proposal was not likely to have a significant environmental impact and she was simply saying that in addition it was the fact that environmental material would be elicited via the consultation process on the planning application. As the judge said, as a matter of common sense the threshold was of considerable relevance in this particular application because it fell so far below the threshold.

11.Turning to the second ground of appeal, the respondent sought to deal with its failure to impose the necessary conditions by way of section 106 obligations. While I accept that there are differences between the permissible scope of conditions and the scope of section 106 agreements, and there are also differences in the enforcement mechanisms in the two cases, there is no doubt here that the interested party is willing to comply with the obligations it has undertaken and that the respondent is prepared to enforce those obligations. Even if that does leave some theoretical legal lacuna, in my judgment it could not sensibly be a basis for quashing this planning permission in the absence of any other legal error.

12.That leaves the most serious issue, which is the appellant's ground 1: the planning officer's advice to the committee that certain matters were not material. The judge set out the officer's advice to the committee to that effect in paragraph 12 of his judgment. Under the heading "Nonmaterial planning issues", the officer listed the following:

"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."

13.The judge dealt with this ground of challenge at some length in paragraphs 32 to 53 of his judgment. In paragraph 38 of his judgment, the judge said that there was nothing which precluded an officer from giving advice as to what are in substance considerations material to a planning application for a specific proposal, and said that if that advice was soundly based then the decision maker would be 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 a particular case have no real bearing upon the final decision.

14.I respectfully agree with that observation, but as Mr Harwood QC on behalf of the applicant points out, that is not what the officer was actually advising the committee. The officer's report did not advise the committee that these were considerations which, although material, should in the circumstances of the case be given, in his professional judgment, little or no weight. This was straightforward advice that these were simply not material planning issues. It is important to bear in mind that whatever the planning officer said to the judge in his witness statement was not before the planning committee; they simply had his report which advised them that certain matters were not material planning issues.

15.It is important to bear in mind that this was a Green Belt case. It was also a case in which the planning officer had correctly advised the committee that the proposed wind turbine was inappropriate development in the Green Belt. It therefore had to be justified, if it was to be justified at all, by very special circumstances.

16.The very special circumstances relied upon by the officer in the report were twofold: they were the generic benefits of renewable energy generally and also the benefit of assisting the farm to diversify, which would ensure that it was viable and would be able to continue to "manage the area" (see paragraph 15 of the judge's judgment).

17.As the applicant submits, in these circumstances it is strongly arguable that granting a planning permission on this basis in the Green Belt was capable of setting a precedent (see the authorities cited by the judge). The applicant makes the point that where one has the position that the very special circumstances relied upon as justifying a permission got inappropriate development in the Green Belt are the general desirability of renewable energy and of increasing a farm's income, then it is difficult to see how, applying a consistent approach to the grant or refusal of planning permission, any other single wind turbine on a farm in the Green Belt could fail to be approved, unless, of course, it would result in even greater additional harm in terms of visual impact.

18.It is at least arguable that the Council's own Urban Design and Conservation Consultant considered that an undesirable precedent in the Green Belt would be set, because the consultant was "concerned that should this turbine proposal be approved, it would be difficult to refuse others in similar locations and result in a cumulative impact."

19.The planning officer provided a witness statement in the proceedings. In that witness statement, he said this:

"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."

20.The judge cited that passage in paragraph 39 of his judgment and underlined the final sentence: "All are site specific, so a grant of permission in one place creates no precedent in respect of another". It is at least arguable that that approach in a Green Belt case is in error. Of course, any built development in the Green Belt will have certain site specific characteristics so that the visual impact, for example, and the effect on the openness of the Green Belt will differ. But planning permission here was granted not on the basis of site specific characteristics, but because of special circumstances which were generic in character. Merely to say that the grant of permission for one house in the Green Belt would not set a precedent because its impact would be site specific is simply no answer to the concern that, unless the criteria of very special circumstances are stringently applied, such a grant of permission will set a precedent for further development in the Green Belt.

21.At first sight, because this was a proposal for a particular farm, it might well be said that the argument that the turbine should be sited elsewhere outside of the Green Belt on already degraded landscapes was little to the point. The difficulty with adopting that position is that the special circumstances relied upon included the general generic need for energy produced from renewable sources. Given that that was one of the special circumstances relied upon, it is at least arguable that the proposition that that general generic need could and should be met on other sites outside the Green Belt was capable of being a material consideration.

22.The judge set out the advice in respect of wind turbines in Planning Policy Statement 1 and Planning Policy Statement 22. It is correct that that advice says in general that applicants for energy development should not be required to demonstrate the overall need for renewable energy, nor need they demonstrate why a proposal for such development must be sited in a particular location. The advice is further to the effect that applications should not be refused solely on the ground that the level of output is small. Applicants do not have to satisfy a sequential test and show that the application site is superior to alternatives.

23.However, the policy guidance also makes it clear that in the Green Belt, Green Belt policy applies. While the fact that a proposal is small and inefficient is not in general terms a reason to refuse planning permission, it certainly does not follow that if a proposal is put forward for inappropriate development in the Green Belt, the fact that the proposal would generate only a small amount of electricity and would be inefficient is irrelevant when the planning authority considers whether or not there are very special circumstances which justify the grant of permission in the Green Belt.

24.Thus it seems to me that there is a respectable argument that precedent, the fact that the turbine would not generate a significant amount of energy and would be inefficient, and that it should be sited elsewhere outside the Green Belt, were all factors which were capable of being material planning considerations and material to this application. It is arguable that the officer's approach that these matters were not material, and that effectively there would be no precedent because each case in the Green Belt would be site specific, was based on a serious misapplication of Green Belt policy in respect of proposals to site wind turbines within the Green Belt.

25.Given the importance of that issue, with some reluctance given the delays that have already occurred in this case, I conclude that the appellant does have a real prospect of success on ground 1 and I grant permission to appeal on that ground.

SMITH BERNAL WORDWAVE