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Judges reject claim council misinterpreted ministerial statement on wind turbines

The Court of Appeal has rejected a claim that a borough council misinterpreted a written ministerial statement published in June 2015 that set out considerations touching applications for planning permission for wind turbines.

In Holder, R (on the application of) v Gedling Borough Council & Ors [2018] EWCA Civ 214 the local authority granted planning permission in April 2016 for construction of a 67.6 metre high wind turbine on a farm close to the village of Woodborough in Nottinghamshire.

The farm is in a rural area which is part of the Green Belt. The wind turbine is intended to provide power for the farm.

The grant of permission was in accordance with the recommendation of Gedling's planning officer in what the Court of Appeal said was a careful and detailed report on the application for permission.

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The officer's report advised that the planning committee could conclude that there were "very special circumstances" to justify the grant of permission for the development in the Green Belt, in accordance with the test laid down in paras. 87-88 of the National Planning Policy Framework.

It also advised that the planning committee could conclude that the development complied with guidance on proposed wind energy developments in the written ministerial statement (WMS).

The appellant was a member of a local group of objectors, Woodborough and Calverton Against Turbines (WACAT), who challenged the grant of permission on seven grounds. Mr Justice Green dismissed the challenge on all grounds.

The appellant was granted permission to appeal to the Court of Appeal in relation to only one of those grounds, which concerned the WMS. He contended that the officer in his report misinterpreted the statement and hence gave incorrect advice that the planning committee was entitled to conclude that the development complied with its guidance.

At issue was the final paragraph of the statement which read:

“Where a valid planning application for a wind energy development has already been submitted to a local planning authority and the development plan does not identify suitable sites, the following transitional provision applies. In such instances, local planning authorities can find the proposal acceptable if, following consultation, they are satisfied it has addressed the planning impacts identified by affected local communities and therefore has their backing."

Counsel for the appellant, Richard Harwood QC, argued that the latter wording should be read as meaning that an authority had to be satisfied that the proposal had resolved (i.e. eliminated) all the negative planning impacts identified by any member of the relevant local community.

In this case, members of the local community, in particular WACAT, had referred to negative planning impacts. These included certain impacts on visual amenity and cultural heritage, which had not been resolved (and could not be resolved, in the sense of eliminated).

Therefore the appellant’s council submitted that Gedling could not be satisfied that the proposal had the backing of the local community and could not find that it was acceptable, for the purposes of the WMS.

Rejecting the challenge, Lord Burnett of Maldon, the Lord Chief Justice, said the Court of Appeal could not accept these submissions and the High Court judge, Mr Justice Green, had been right to reject them.

“The proper interpretation of planning policy, including the Statement, is a matter for the court. Mr Harwood's submissions are contrary to the natural meaning of the language used in the relevant part of the Statement, especially when it is read in the context of the Statement as a whole and in the wider legislative and policy context set out above,” the LCJ said.

“The Statement does not provide a test for what is to count as the relevant local community in relation to any particular development. That will depend on the facts of the case and the planning judgment of the local planning authority. There is no suggestion in this case that the Council has reached an impermissible view of who constitutes the local community in relation to this proposed development.”

Lord Burnett continued: “In our view, the natural meaning of the relevant phrase in the last sentence of the Statement is that a local planning authority can find the proposal acceptable if it has sufficiently addressed the planning impacts identified through consultation with the relevant local community to the extent that it can properly conclude, in the exercise of its planning judgment, that the balance of opinion in the local community is likely to be in favour of the proposal.”

The more stringent interpretation of the final paragraph of the Statement urged on the court by the appellant was not tenable, he added.

The Lord Chief Justice said: “As noted above, it would effectively involve reading the word "addressed" to mean "resolved" or "eliminated". The usual position when considering an application for planning permission is that a range of potential benefits has to be weighed against a range of incommensurable potential detriments. It is rarely the case that it can be said that every potential detriment has been eliminated, as opposed to being mitigated and outweighed by countervailing benefits.

“Therefore, in the planning context the natural meaning of "addressed" is "sufficiently addressed"; that is to say, sufficiently addressed by taking into account mitigating factors and countervailing benefits. If the drafters of the Statement had intended the stronger meaning urged by Mr Harwood, there is little doubt they would have used appropriate stronger language to make that clear.

The judge said the nature of the assessment to be undertaken by the planning authority - of the balance of view within the local community - was a strong indication in favour of the interpretation of the last paragraph of the Statement the Court of Appeal had set out and against the interpretation proposed by Mr Harwood. “Put another way, the Statement does not elevate those members of the local community who have views which are the most vehemently opposed to a proposal into the arbiters of the view of the local community as a whole.”

Lord Burnett said the Court of Appeal’s interpretation of the last paragraph of the Statement was also strongly supported by consideration of the wider context of the WMS. “In the opening paragraph of the Statement, the Secretary of State says that it is intended to give local people "the final say" on wind farm applications. In the second paragraph he refers to a limited number of consequential changes to planning guidance, but the main provisions of national policy set out in section 10 of the NPPF are left unaltered. Both these points are significant.”

The judge said that although the WMS was intended to be additional policy guidance which might well affect planning decisions, it was “plainly not intended to be completely at odds” with national policy in relation to renewable energy nor with policies in local plans made in conformity with paras. 94 to 96 of the NPPF to promote the use of renewable energy.

“The appellant does not suggest that it completely supersedes or in some way trumps all other planning guidance. Yet if the Statement were interpreted as proposed by the appellant, then whenever an objector in the local community referred to a negative planning impact from a proposal which could not be completely eliminated (such as is likely to be the position with impact on visual amenity in almost every case involving proposed wind turbine developments in the countryside) the local planning authority would be forced to weigh the Statement against other very weighty factors in national and local policy in favour of the proposal,” Lord Burnett said.

“The likely result would be that in many cases the Statement, as so interpreted, would be outweighed and would be overridden. That would mean that the apparent assurance given by the Secretary of State in the Statement would frequently turn out to be hollow. The Secretary of State cannot have intended that the Statement should have a meaning which would have this result.

In the light of the Court of Appeal’s interpretation of the statement, Lord Burnett said, Gedling was lawfully entitled to make the assessment, in the exercise of its planning judgment on the evidence available to it, that the balance of view in the local community as a whole was favourable to this wind turbine proposal. The appeal was dismissed.

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