Wind turbines and the Broads

The Court of Appeal has dismissed an appeal against a judgment upholding an inspector’s decision to grant planning permission for a 125m wind turbine. Richard Honey explains why.

The case of Howell v SSCLG & Stamford Renewables [2015] EWCA Civ 1189 concerned a challenge under s288 of the Town and Country Planning Act 1990 to the grant of planning permission on appeal for the construction of a 125m wind turbine at Shipmeadow near Beccles in Suffolk, around 800m from the Broads. The appeal raised various issues including the statutory duty in s17A of the Norfolk and Suffolk Broads Act 1988, the application of planning policies, the planning practice guidance provisions on energy generation and capacity factor, and noise conditions. The appeal was rejected on all grounds.

Giving the leading judgment, Sir David Keene said that the appeal raised some interesting questions of planning law, particularly in respect of the interpretation of planning policy documents and of the statutory duty under s17A of the 1988 Act.

In relation to the s17A duty to have regard to the purposes of conserving and enhancing the natural beauty of the Broads, the Judge said that it was proper for the decision-maker to consider what contribution to the natural beauty of the designated area is made by the part from which views of the development would be obtainable. He endorsed as a realistic approach to the application of s17A the statement of Cranston J that, when considering the purpose of conserving and enhancing the natural beauty of the Broads, it is relevant to consider the extent to which the land affected exhibits the characteristics of the Broads landscape, since those characteristics are what create ‘the natural beauty…of the Broads’.

Sir David Keene said that the wording of s17A was perfectly clear and required that the decision-maker, like any other public body exercising functions which affect land within the Broads, must have regard to the statutory purposes, but that this did not create any sort of presumption as to the outcome of the decision. 

As to capacity factor and the electricity generated by a particular turbine, the Court of Appeal endorsed the statement of the Court in Bayliss v Secretary of State for Communities and Local Government [2014] EWCA Civ 347 that this is an inherently uncertain topic and a matter of judgement for the decision-maker. 

On the noise condition issue, Sir David said it was principally a matter of planning judgment as to what form a condition on a planning permission should take and whether it will suffice to avoid an identified harm.

Richard Honey is a barrister at Francis Taylor Building. He appeared for the Secretary of State and Jeremy Pike, also of FTB, appeared for the developer, Stamford Renewables Ltd.